Escaping the Slippery Slope: Freedom of Expression and Cyberspace Regulation after the Delfi Case

Abstract

In June 2015, the European Court of Human Rights delivered the final judgment in the Delfi case, where it upheld the decision of an Estonian court to fine a news portal for hosting anonymous defamatory comments. This controversial judgment has a chilling effect on freedom of expression in cyberspace and paves the way for a slippery slope leading to online censorship. The key policy issue is striking a balance between freedom of expression and other protected interests, including privacy, reputation and national security. This paper argues that holding Internet Service Providers (ISPs) liable for third-party content places a disproportionate burden on them and destabilises the architecture of Web 2.0 to the detriment of human rights. To this end, we argue that a new regulatory approach is necessary to address the rights of ISPs in the attempt to balance freedom of expression with new developments in the need for protection of personal data.