CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 octobre 2013

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page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA4D66361 { font-family:Arial; color:#0070c0 } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s31E56244 { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s29DC30 { width:171.95pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid }       FIRST SECTION                 CASE OF DELFI AS v. ESTONIA   (Application no. 64569/09)                     JUDGMENT     STRASBOURG   10 October 2013   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 16/06/2015   This judgment may be subject to editorial revision.   In the case of Delfi AS v. Estonia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Isabelle Berro-Lefèvre, President,   Elisabeth Steiner,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Julia Laffranque,   Ksenija Turković,   Dmitry Dedov, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 17   September 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 64569/09) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Delfi AS, a public limited company registered in Estonia (“the applicant company”), on 4 December 2009. 2.     The applicant company was represented by Mr V. Otsmann, a lawyer practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3.     The applicant company alleged that its freedom of expression had been violated. 4.     On 11 February 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     Written submissions were received from the Helsinki Foundation for Human Rights in Warsaw, which had been granted leave by the President to intervene as a third party (Article 36 § 2 of the Convention and Rule 44 §   2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant company is a public limited company ( aktsiaselts ), registered in Estonia. A.     Background of the case 7.     The applicant company is the owner of Delfi, an Internet news portal that publishes up to 330 news articles a day. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania. 8.     At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her email address (optional). Below these fields there were buttons “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms. 9.     Nevertheless, there was a system of notify-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 10.     The applicant company had made efforts to advise users that the comments were not its opinion and that the authors of comments were responsible for their content. On Delfi’s Internet site there were “Rules of comment” which included the following: “The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his/her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments the content of which does not comply with good practice. These are comments that: -     contain threats; -     contain insults; -     incite hostility and violence; -     incite illegal activities ... -     contain obscene expressions and vulgarities ... Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments ...” The functioning of the notice-and-take-down system was also explained in the text. 11.     The Government submitted that in Estonia Delfi had a notorious history of publishing defaming and degrading comments. Thus, on 22   September 2005 the weekly newspaper Eesti Ekspress had published a public letter from the editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. B.     Article and comments published on the Internet news portal 12.     On 24 January 2006 the applicant company published an article on the Delfi portal under the heading ‘SLK Destroyed Planned Ice Road’. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation SLK stands for AS   Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited company). SLK provides a public ferry transport service between the mainland and some islands. L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder at the material time. 13.     On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed against L. 14.     On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments: “1.     1. there are currents in [V]äinameri 2. open water is closer to the places you referred to, and the ice is thinner. Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in bag 2.     fucking shitheads... they bath in money anyways thanks to that monopoly and State subsidies and now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3.     good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into oven! 4.     [little L.] go and drown yourself 5.     aha... [I] hardly believe that that [happened] by accident... assholes fck 6.     rascal!!! [in Russian] 7.     What are you whining, kill this bastard once[.] In the future the other ones ... will know what they will risk, even they will only have one little life. 8.     ... is [bloody] right. To be lynched, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he. 9.     “a good man lives [long,] a shitty man [a day or two]” 10.     If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why it takes 3 [hours] for your ferries if they are so good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will pass [the strait] anyways and if I will drown, it is your fault 11.     and can’t anyone defy the shits? 12.     [inhabitants of Saaremaa and Hiiumaa islands], do 1:0 to this dope. 13.     wonder whether [L.] won’t be trashed in Saaremaa? to screw one’s owns like that. 14.     The people will chatter for a couple of days in the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed stroke back (RIP). Will also strike back to these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless in respect of them – it is really them who govern the state), because they only live for today. Tomorrow, the flood. 15.     this [V.] will once get [a blow] from me with a cake. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that...a pig is going to be slaughtered. no way 16.     bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17.     Estonian state, led by scum [and] financed by scum, of course does not prevent or punish the antisocial acts of the scum. But well, each [L.] has his Michaelmas... and this cannot at all be compared to a ram’s Michaelmas. Actually sorry for [L.] – a human, after all... :D :D :D 18.     ... if after such acts [L.] should all of a sudden happen to be on sick leave and also in case of the next destruction of the ice road... will he [then] dear to act like a pig for the third time? :) 19.     fucking bastard, that [L.]... could have gone home with my baby soon... anyways his company cannot guarantee a normal ferry service and the prices are such that... real creep... a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year 20.     can’t make bread from shit; and paper and internet stand everything; and just for own fun (really the state and [L.] do not care about the people’s opinion)... just for fun, with no greed for money – I pee into the [L.’s] ear and then I also shit onto his head. :)” 15.     On the same day the offensive comments were removed by the applicant company. 16.     On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. C.     Civil proceedings against the applicant company 17.     On 13 April 2006 L. brought a civil suit with the Harju County Court against the applicant company. 18.     At the hearing of 28 May 2007 the representatives of the applicant company submitted, inter alia , that in cases like the “Bronze Night” (public disorders related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed 5,000-10,000 comments per day, also on its own initiative. 19.     By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s responsibility was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on the Directive on Electronic Commerce (Directive   2000/31/EC of the European Parliament and of the Council of 8   June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The court considered that the comment environment in the applicant company’s news portal was to be distinguished from the portal’s journalistic area. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 20.     On 22 October 2007 the Tallinn Court of Appeal allowed L.’s appeal. It considered that the County Court had erred in finding that the applicant company’s responsibility was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case referred back to the first-instance court for new consideration. 21.     On 21 January 2008 the Supreme Court declined to hear the applicant company’s appeal. 22.     On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions it relied on the Obligations Act ( Võlaõigusseadus ) and deemed the Information Society Services Act inapplicable. It observed that the applicant company had placed a note on its Internet site that comments were not edited, that it was prohibited to post comments that were contrary to good practice, and that the applicant company reserved to itself the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer that it was not liable for the content of the comments. 23.     The County Court found that the news article itself published in the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK   5,000 (EUR 320) in non-pecuniary damages. 24.     On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise preliminary control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 25.     The Court of Appeal rejected the applicant company’s argument that its responsibility was excluded on the basis of the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services. 26.     On 10 June 2009 the Supreme Court dismissed the applicant company’s appeal. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning. 27.     The Supreme Court approved the lower courts’ interpretation of the Information Society Services Act, and reiterated that an information society service provider, falling under that Act and the Directive on Electronic Commerce, had neither knowledge of nor control over information which was transmitted or stored. By contrast, a provider of content services governed the content of information that was being stored. In the present case, the applicant company had integrated the comment environment into its news portal and invited users to post comments. The number of comments had an effect on the number of visits to the portal and on the applicant company’s revenue from advertisements published on the portal. Thus, the applicant company had an economic interest in the comments. The fact that the applicant company did not write the comments itself did not imply that it had no control over the comment environment. It enacted the rules of comment and removed comments if the rules were breached. The users, on the contrary, could not change or delete the comments they had posted; they could merely report obscene comments. Thus, the applicant company could determine which comments were published and which not. The fact that it made no use of this possibility did not mean that it had no control over the publishing of the comments. 28.     Furthermore, the Supreme Court considered that in the present case both the applicant company and the authors of the comments were to be considered publishers of the comments. In this context, it also referred to the economic interest of an internet portal’s administrator, which made it a publisher as entrepreneur, similarly to a publisher of printed media. The Supreme Court found that the plaintiff was free to choose against whom to bring the suit, and L. had chosen to bring the suit against the applicant company. 29.     The Supreme Court found that on the basis of its legal obligation to avoid causing damage to other persons the applicant company should have prevented clearly unlawful comments from being published. Furthermore, after the comments had been published, it had failed to remove them on its own initiative, although it must have been aware of their unlawfulness. The courts had rightly found that the applicant company’s failure to act had been unlawful. D.     Subsequent developments 30.     According to information posted on 1 October 2009 by Delfi on its Internet portal Delfi did not allow persons who had posted offensive comments to post a new comment until the commenter had read and accepted the rules of commenting. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the rules of commenting was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 0.5% of the total number of comments. II.     RELEVANT DOMESTIC LAW AND PRACTICE 31 .     The Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) provides: Article 17 “No one’s honour or good name shall be defamed.” Article 19 “(1)     Everyone has the right to free self-realisation. (2)     Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties.” Article 45 “(1)     Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for state and local government public servants, to protect a state or business secret or information received in confidence, which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice. (2)     There is to be no censorship.” 32.     Section 138 of the Civil Code (General Principles) Act ( Tsiviilseadustiku üldosa seadus ) provides that rights shall be exercised and obligations performed in good faith. A right shall not be exercised in an unlawful manner or with the aim of causing damage to another person. 33.     Paragraph 2 of section 134 of the Obligations Act ( Võlaõigusseadus ) provides: “In the case of an obligation to compensate for damage arising from ... violation of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the violation, in particular by physical or emotional distress.” 34.     Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable ( süüdi ) of causing the damage or is liable ( vastutab ) for causing the damage pursuant to law 35.     Section 1045 of the Obligations Act stipulates that the causing of damage is unlawful if, inter alia , the damage is caused by violation of a personality right of the victim. 36 .     The Obligations Act further provides: Section 1046 – Unlawfulness of damage to personality rights “(1)     Defamation of a person, inter alia by passing undue judgment, by the unjustified use of the name or image of the person, or by breaching the inviolability of the private life or another personality right of the person, is unlawful unless otherwise provided by law. Upon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration. (2)     The violation of a personality right is not unlawful if the violation is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases unlawfulness shall be established on the basis of the comparative assessment of different legal rights and interests protected by law.” Section 1047 – Unlawfulness of disclosure of incorrect information “(1)     Violation of personality rights or interference with the economic or professional activities of a person by way of disclosure [ avaldamine ] of incorrect information or by incomplete or misleading disclosure of information concerning the person or the activities of the person, is unlawful unless the person who discloses such information proves that, upon disclosure thereof, the person was not aware and was not required to be aware that such information was incorrect or incomplete. (2)     Disclosure of defamatory matters concerning a person, or matters which may adversely affect the economic situation of a person, is deemed to be unlawful unless the person who discloses such matters proves that the statement he or she makes is true. (3)     Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has checked the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. (4)     In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at their own expense, regardless of whether the disclosure of the information was unlawful or not.” Section 1055 – Prohibition on damaging actions “(1)     If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand that behaviour which causes damage be terminated or the making of threats of such behaviour be refrained from. In the event of bodily injury, damage to health, violation of inviolability of personal life or any other personality rights, it may be demanded, inter alia , that the tortfeasor be prohibited from approaching others (restraining order), the use of housing or communication be regulated, or other similar measures be applied. (2)     The right to demand that behaviour which causes damage as specified in subsection (1) of this section be terminated does not apply if it is reasonable to expect that such behaviour can be tolerated in human coexistence or due to significant public interest. In such a case the victim has the right to make a claim for compensation for damage caused unlawfully ...” 37.     The Information Society Services Act ( Infoühiskonna teenuse seadus ) provides as follows: Section 8 – Restricted liability upon mere transmission of information and provision of access to public data communications network “(1)     Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider is not liable for the information transmitted, on condition that the provider: 1)     does not initiate the transmission; 2)     does not select the receiver of the transmission; 3)     does not select or modify the information contained in the transmission. (2)     The acts of transmission and of provision of access within the meaning of paragraph   1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.” Section 9 – Restricted liability upon temporary storage of information in cache memory “(1)     Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider is not liable for the automatic, intermediate and temporary storage of that information, if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service at their request, on condition that: 1)     the provider does not modify the information; 2)     the provider complies with conditions on access to the information; 3)     the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry; 4)     the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information; 5)     the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a state supervisory authority has ordered such removal.” Section 10 – Restricted liability upon provision of information storage service “(1)     Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: 1)     the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; 2)     the provider, upon obtaining knowledge or awareness of the facts specified in subparagraph 1 of this paragraph, acts expeditiously to remove or to disable access to the information. (2)     Paragraph 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider.” Section 11 – No obligation to monitor “(1)     A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged to actively seek information or circumstances indicating illegal activity. (2)     The provisions of paragraph 1 of this section do not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider. (3)     Service providers are required to promptly inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.” 38 .     In a judgment of 21 December 2005 (case no. 3-2-1-95-05) the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] meant disclosure of information to third parties. A person who transmitted information to a media publisher [ meediaväljaanne ] could be considered a discloser [ avaldaja ] even if he or she was not the publisher of the article [ ajaleheartikli avaldaja ] in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no.   3 ‑ 2 ‑ 1-67-10). 39 .     In a number of domestic cases actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (the Supreme Court’s judgment of 7   May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (the Supreme Court’s judgment of 1 December 1997 in case no.   3-2-1-99-97), and solely against a publisher of a newspaper (the Supreme Court’s judgment of 30 October 1997 in case no. 3-2-1-123-97, and a judgment of 10 October 2007 in case no. 3-2-1-53-07). III.     RELEVANT INTERNATIONAL MATERIAL A.     Council of Europe documents 40.     On 28 May 2003 the Committee of Ministers of the Council of Europe adopted, at the 840th meeting of the Ministers’ Deputies, the Declaration on freedom of communication on the Internet. It reads in the relevant part as follows: “The member states of the Council of Europe ...Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties; Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce); Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors; Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts; (...) Declare that they seek to abide by the following principles in the field of communication on the Internet: Principle 1: Content rules for the Internet “Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.” Principle 3: Absence of prior state control “Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries. Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.” Principle 6: Limited liability of service providers for Internet content “Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity. Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet. In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information. When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information. In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law.” Principle 7: Anonymity “In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.” B.     European Union documents 1.     Directive 2000/31/EC 41.     Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provides as follows: “... (9)     The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article   46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression ...   (42)     The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43)     A service provider can benefit from the exemptions for “mere conduit” and for “caching” when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44)     A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of “mere conduit” or “caching” and as a result cannot benefit from the liability exemptions established for these activities. (45)     The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46)     In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47)     Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48)     This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities. ...” Article 1 – Objective and scope “1.     This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States ...” Article 2 – Definitions “For the purpose of this Directive, the following terms shall bear the following meanings: (a)     “information society services”: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; (b)     “service provider”: any natural or legal person providing an information society service; (c)     “established service provider”: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider ...” Section 4: Liability of intermediary service providers Article 12 – “Mere conduit” “1.     Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a)     does not initiate the transmission; (b)     does not select the receiver of the transmission; and (c)     does not select or modify the information contained in the transmission. 2.     The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3.     This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.” Article 13 – “Caching” “1.     Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request, on condition that: (a)     the provider does not modify the information; (b)     the provider complies with conditions on access to the information; (c)     the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry; (d)     the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and (e)     the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2. &#xa