Katrin Nyman Metcalf
Political and institutional developments
Freedom of expression is stated in Article 10 of the European Convention on Human Rights (ECHR) and in paragraphs 44-46 of Constitution of Republic of Estonia. Freedom of expression is vital in itself as well as a prerequisite for exercising other freedoms, and as the basis for functioning of democracy, and entails the freedom to express one’s opinion and impart information – whether in written form, verbally, as images or by other means – and the right to obtain information. Freedom of expression includes acts regarding the media, access to information, and data protection. Freedom of expression can be restricted in certain circumstances and on certain conditions for the protection of other rights (for example, privacy), for security considerations, or for other reasons, such as for licensing of broadcasting.
The state of freedom of expression in Estonia is generally good, as was the case in 2013. However, the previous year was a remarkable one for Estonian media for several events that took place in the media sphere. In the beginning of September the Norwegian media concern Schibsted sold the company Eesti Meedia, which also owns the daily paper Postimees. The buyers were Estonian investors. This means that important media publications are in the possession of local owners over a very long time. Schibsted has been a very important player in Estonian media sphere since 1998, owning several local papers, radio stations and the television channel Kanal 2 via Eesti Meedia. Another event that received a lot of media coverage was the changing of the editorial office of the culture paper Sirp. The debate surrounding it, where the Minister of Culture Rein Lang was accused of excessive interference in internal matters of an independent newspaper and lying to the public, lead to the resignation of the Minister in November. Urve Tiidus became the new Minister of Culture, who, as the previous Minister, has a background in journalism.
An important event, which was also extensively covered outside Estonia was the European Court of Human Rights’ judgment in the Delfi v. Republic of Estonia case. It was the first important court case regarding internet content, more specifically about the comments on the internet, in the world. As Delfi altered its system for internet comments in 2007 already, when the case was brought to Estonian courts, the European Court of Human Rights (ECtHR) judgment did not bring about any visible practical effect, but the judgment is nevertheless a remarkable one in the general debate about internet freedom. More about this case below.
In 2013 amendments were made to the monitoring procedure in the Media Services Act (which was adopted in 2010). The Estonian Technical Surveillance Authority had namely largely adopted the former tasks of the Ministry of Culture. The amendments will come in to force in 2014. The new procedure is in accordance with the norms in force in Europe as well as recommendations of various organisations dealing with media issues. Estonia is so far the only EU Member State not to have a separate media governing authority. The explanatory memorandum to the draft act (of 6 December 2012) read as follows: “the main objective of the amendment to the act is to create a judicial regulation and an administrative order, which would be in accordance with the principles of the European Union and the Council of Europe in the media sphere and would help guarantee independence of governing authorities and take into consideration the developments of recent years in the media services market in Estonia.“ This is positive change as it brings the situation in Estonia into conformity with the norms in force in Europe better. It is, however, too early to assess the practical effect of these amendments.
Explanations as to what extent it applies to electronic communications companies and other small amendments, for example, regarding activity licences have been added to the Media Services Act. It is generally a matter of harmonisation of the act with new technologies and the interpretations in force in Europe.
In 2013 paragraphs were added to the Penal Code on access to child pornography and its monitoring (§ 1751), and paragraphs about making and enabling it were altered (§ 178). The purpose of the amendments was to make the use of child porn more difficult. The provisions are a part of a greater amendment to law, which aims to protect children, also containing amendments to prohibition of buying sexual services from a minor. The amendments came into force 23 December 2013.
The amendments to paragraphs on incitement of hatred (with the purpose of bringing regulation into concordance with the Council of European Union Framework Decision on Combating Racism and Xenophobia better), which had been discussed at round tables organised by the Ministry of Justice in the past few years, were not passed in 2013 either.
The most significant judgment regarding media in 2013 did not come from courts in Estonia, but from the European Court of Human Rights. In October of 2013 the ECtHR passed a judgment in the Delfi case – which had been long awaited not only in Estonia, but in the whole of Europe and elsewhere in the world. The case is of so much interest, because there are few judgments about the internet, and judicial instances having an opportunity to analyze the legal aspects of the internet is an awaited event. This helps better determine how to implement law in the cyber environment. This is a question of global importance as the internet grew so fast that there is very little legislation about it and the issues of responsibility are solved pragmatically once they have arisen. But this is not the best for legal certainty – especially considering the internet’s increasing importance for the society as a whole.
The Delfi case is about responsibility for the internet comments. In short, the basis for the court case were the anonymous comments posted to an article published in the Delfi news portal, which allegedly defamed a private person who took Delfi to court. It is important to note that the article itself was not defamatory in nature – neither did the applicant claim it was – and the comments had not been commissioned or approved by Delfi. Yet Delfi had enabled posting them on its website, and even though there was a system for monitoring the comments and taking them down if need be, the highest court instance in Estonia found in 2008 (this judgment was appealed to the ECtHR) that the system was too slow and the defamatory comments had been accessible for long enough for Delfi to be responsible for them. Delfi was imposed a fine in the value of 320 euros. The small fine indicated that it was not meant to punish, but rather to draw attention to the situation that if posting content to the internet is made possible, there has to be a more efficient system for checking the accordance of its contents to acts of law.
The ECtHR approved of the small sum of the fine, as they also believed it was important to draw attention to the effectiveness of the monitoring system. Delfi has changed its practice after the incidence, but since it found that the judgment of the Estonian court restricted their freedom of expression they appealed the judgment to the ECtHR as an alleged breach of Article 10 of the ECHR. Several freedom of expression organisations supported Delfi and were highly critical of the judgment, stating that the judgment places too great a responsibility on the editors of internet pages for the content, whereas such websites should be seen as intermediaries, who have a limited responsibility according to the Directive on EU e-commerce. Some organisations have spoken of their intent to appeal the judgment of the ECtHR to the en banc of the European Court of Human Rights. At the same time the meaning of principles used in the EU Directive is not clear as there are few court judgments and the limits between the roles of various organs operating on the internet is not clear. The judgment of the ECtHR can therefore primarily be seen as an attempt to apply the same rules in cyber space as are applicable in other media.
The Supreme Court did not make any decisions on constitutional review regarding freedom of expression in 2013. The Administrative Law Chamber of the Supreme Court judgment no 3-3-1-58-13 made on 8 November 2013 is indirectly linked to freedom of expression, more specifically freedom of the media. It has to do with the appeal in cassation the media company Starman AS brought against the Estonian Technical Surveillance Authority in relation to meeting the requirements stated in the Electronic Communications Act concerning monitoring of persons providing a public service, and also the interpretation of the term “public services”. The particulars are not important in this context, but the court in its judgment draws attention to the importance of using the practice of the European Court of Justice and that of other EU Member States, in order to correctly interpret the terms in European law.
Statistics and surveys
In addition to acts of law and the court system Estonia also has a system based on self regulation. Complaints can be filed with Avaliku Sõna Nõukogu or the Estonian Press Council. In addition to the press the members also comprise of certain broadcasting channels and the internet media (Delfi). The number of complaints processed at the Estonian Press Council was highest in 2011 (67 complaints and 61 decisions), the corresponding figures were 49 and 38 in 2012, in 2013 there were 56 complaints and 52 decisions.
The condemning decisions and acquittals were divided almost equally: 25 and 27. Avaliku Sõna Nõukogu deals with questions of media ethics and processes complaints. In 2012 Avaliku Sõna Nõukogu received significantly fewer complaints than in 2011 (respectively 23 and 40). The number of complaints was also higher in two years before that. In 2013 there were 30 complaints – 10 acquittals and 8 condemning decisions. The number or content of the complaints do not indicate any significant change in the operation of the systems or in the awareness of people, people are generally aware of the existence of the self regulation and the organs deal with cases brought to them in the prescribed manner.
Public discussions and trends
The state of freedom of expression in Estonia has been positive and sufficiently stable for a long time so that the changes in the media sphere do not present a particular danger to freedom of expression. The media sphere in Estonia is diverse for such a small country and there is generally little political pressure on the media. To mention less positive facts, the tone and content of internet comments, for example, is still oftentimes raw and insulting, which means people may refrain from participating in public discussions. Even though the Delfi case may have a certain effect in longer perspective, it is not likely to alter anything, since changes were implemented a few years ago already when the case was first brought to court in Estonia. The media publications have already done what they can – the rest of the problems stem rather from a lacking culture of communication.
The Russian speaking residents continue to largely consume Russian media, which means they live in a separate media sphere as the majority of residents of the Republic of Estonia. There are also great differences in the content of Estonian and Russian language media published in Estonia.
There was a lot of discussion about internet comments in the media, especially after the Delfi case, but also in general the topic of internet freedom and transparency (what happens in relation to removal of content from the internet) has been discussed a lot in 2013. The international disclosures, especially about the expansive activity of the U.S. intelligence service have brought on discussion about privacy in Estonia. Although, it has to be admitted that there have been fewer discussions in Estonia than in some other countries – perhaps because Estonia, being a small country, is not that much of an interest as a subject of intelligence, but also maybe for the reason that in Estonia the use of modern information technology is something the residents are used to and are also more aware of its dangers – for example, privacy (as part of what is being discussed is not new in content, but has just become more visible in the debate).
- The state of expression in Estonia is good and there are no recommendations for amendments to acts of law or in its implementation. At the same time, the work on media ethics must continue as new challenges arise constantly – for example, how to guarantee principles of ethical media also on the internet. As the internet content can be made and distributed by anyone, not just journalists and media professionals, the awareness raising must also be done through public discussion and training of youth and children.
 Delfi AS v. Estonia. Application no. 64569/09. 10.10.2013. Available at: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126635.
 Explanatory memorandum. 6.12.2012. Page 1. Available at: https://www.riigiteataja.ee/eelnoud/menetluskaik/KUM/12-0908 .
 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).
Available at: http://www.eall.ee/pressinoukogu/statistika.html.
 Available at: http://www.asn.org.ee/statistika.html.