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Report No. 267

Hate Speech and Internet:

4.23 While internet has made the globe a small and connected place, it has also created a space for unregulated forms of expression. In Delfi v. Estonia,64 the applicants approached the court against the order of the Estonian court, wherein the applicants (owners of the internet news portal) had been made liable for user generated comments posted on their website. This was the first case where the court had to examine the scope of article 10 in the field of technological innovations.

4.24 The court observed that while internet is an important tool for disseminating information and opinions, it also serves as a platform for disseminating unlawful speech. The court emphasized on the need to 'harmonise these two conflicting realities'65 as the freedom of expression cannot be exercised at the cost of other rights and values enunciated in the Convention. The court upholding the decision of the Estonian Court held that:

in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court's case-law, the Court considers ... that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. 66

4.25 The content and context of the expression plays an important role in analysing the permissibility of the speech. The court takes into account various factors before excluding speech from protection under the Convention like, nature of remarks, dissemination and potential impact of remarks, status of targeted person, status of the author of the remarks, nature and severity of penalty imposed (to determine the proportionality of the interference) etc.67

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