We need to talk about lawyers
















Further reading:

How state aid killed Estonian Air









One more important thing.


Thoughts on the Delfi vs Estonia case

Posted: June 16th, 2015 | Author: | Filed under: human rights, law, privacy | No Comments »

Today, the Grand Chamber judgment of the ECtHR case Delfi vs Estonia was delivered. The case has an important impact in the balancing of mainly two human rights: freedom of expression and the right to private and family life (to a lesser extent also freedom from discrimination, which is not so well protected under ECtHR). It found that Estonia had not infringed Article 10 (freedom of expression) when it fined Delfi for allowing the publication of user-generated comments, which incited hatred against an individual businessman.

The court makes an important distinction that the liability for user-generated content does not apply to:


It only applies for large commercially run portals which creates its own content and asks people to comment on it. This seems to be a way to distinguish between a news portal and social media platforms like YouTube, Twitter or Facebook, although that is not entirely clear.

On other points as well, the Grand Chamber followed the previous decision, but perhaps gave a bit more context and reasoning. On anonymity the Court basically said that it is important, but not all-important because of the reach and speed of information dissemination on the Internet. It referred to the CJEU Google Spain case as an example of the renewed importance of privacy in the digital age. The Grand Chamber seems to have struck somewhat of a balance: if you are a large corporation that earns money on infringement of privacy of individuals (like Google or Delfi), then you cannot use freedom of expression to excuse your intrusions and have to set up sufficient safeguards against it.

In a way there is a larger point to be made: we need rule of law and courts to protect us also from the impact technology to human rights. The ECtHR in its decision is trying to rebalance the right to privacy against freedom of expression in a new context, but surely we are still very much in the beginning of the road.


Delfi vs Estonia Grand Chamber judgment

My 2013 analysis of the Delfi vs Estonia ECHR judgment 

Kant and Facebook




Kant’s autonomous individual












Web 2.0








Autonomy and social media






Jürgen Habermas has stated in an interview with FT:










Possibilities for “Facebook Kantianism”








Tallinn, 6 January 2015











Kant, I. 1795. Perpetual Peace: A Philosophical Sketch






Holding on to our values

Posted: January 9th, 2015 | Author: | Filed under: cool, governance, human rights, law, politics, thoughts | No Comments »

Terror aims to divide and isolate us. As Hannah Arendt wrote, this is true for the rule of terror in totalitarian regimes, but it is also the aim of fundamentalist extremists today whatever their ideology. They aim to disrupt our lives and frighten us to force us to change our values, beliefs and behaviour. In this fear we already lost our way for a while as evidenced by torture and extrajudicial detention in secret prisons, mass surveillance of everything and everyone, etc.

Instincts and emotions tells us to give in to fear, to blame an entire religion or group of people, to make compromises that should not be made etc.

As rational and moral human beings interested in organising our lives so that we can live peacefully together, we should not give in to those raw emotions and instincts. Instead, we must be even better at adhering to our values of democracy, freedom, pluralism, equality and tolerance.

Human beings are currently living together in an increasingly interdependent and interconnected world, having empathy with other individuals, and their human dignity, because of rational and moral choices people have made, because of the constitutional states and international legal system that we have built up. We are all not born equal, we have decided to organize our lives so as to treat everyone equally, because it is good for us all.

This means that we currently live in the most peaceful, least violent times for the human species. Statistically speaking, in terms of reduction of violence in the world we live in an utopian paradise that could not have been dreamed of even 100 years ago. So lets not let anyone change this and strive to be even better at achieving those values.

Fuzzy borders

Posted: January 4th, 2015 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, thoughts | No Comments »

There has been recently some discussion in Estonia on the culture of complaint, especially in the rather influential conservative-libertarian circles. This concept, which was initially proposed by the late art critic Robert Hughes in his bestseller book in the US in 1993, was expressed in Estonia in modern terms by Elver Loho in his post on nihilist.fm. Obviously I disagree with both Robert Hughes and Elver on these issues, but that is for another post at another time. However, this has started me thinking on group-based approaches to categorising people.

It used to be easy to define and label individuals based on specific stereotypes and assign them to ingroups and outgroups, i.e. Estonian and Russian, woman or man, gay or straight, which could then become basis for discrimination or even worse as history has witnessed. However, there are additional facets to this because people’s identities and group boundaries are changing too because of social progress and also technological progress that has made unparalleled mobility and connectivity possible for many people around the globe.

Ingroups and outgroups are becoming at the same time fragmented and globalised due to the impact of social media. Fragmented in the sense that people find new ingroups based on extremely specific criteria (fans of an obscure singer) that allows them to cultivate their individual interests while sharing them with people from around the world. Globalised in the sense that there are new global ingroups and outgroups (Beliebers, Apple fans, chemtrail conspiracy theorists, etc etc) that come and go. These seemingly superficial categories have much more impact than one thinks, comparisons with religious cults are not totally out of place.

On the other hand, the perceived borders between groups based on which people used to be labelled and grouped together are becoming fuzzy. Distinct human races have been proven not to exist, ethnicity is more and more self-defined and unlimited (how would you objectively define an Estonian?). People migrate and get multiple relationships with different ethnic and national communities.

Country borders are becoming porous, because states cannot any more decide who can live in their country. In Estonia’s case, 500+ million EU citizens have a rights and obligations in relation to Estonian state, as well as the huge number of permanent residents who are non-citizens, not to mention refugees under international law. Although non-citizens have no access to traditional representative democracy through elections (which is a problem), they can wield power in other ways (for example through the judiciary and the executive branch). Citizenship has little meaning left for defining ingroup/outgroup. E-resident Edward Lucas is probably considered by many Estonians belonging to an ingroup more than many of the 300 000 Russians living here on a permanent basis.

One cannot really base one’s attitudes towards people based on perceived gender and sexuality, either. Gender and sexuality is not binary, because in addition to cis gender persons there are people who identify as various forms of trans* and in addition to strictly heterosexual people there are a range of (closeted and non-closeted) lesbian, gay, bisexual, queer, etc people. Also, disability as a social construct can now under anti-discrimination law mean any long-term physical or mental impairment that prevents from participating in work-life equally with others (i.e. including certain overweight people).

This variety of differences, which is also intersecting in each individual and unique human being, some of which has always existed and some of which has been made possible by technology (i.e. mobility and connectivity) is the thing that seems to making people uneasy and uncertain, because they cannot rely on their prejudice and stereotyping. I do not have an easy stereotype for a cis gender, lesbian, Chinese businesswoman, who lives in India and has a British spouse. What if she is also a Belieber and uses Linux? Stereotypes that used to be good for easier living are increasingly unreliable and also unacceptable (which is why sensitivities and so-called political correctness has become an issue).

In order to cope, one cannot but to have tolerance for all the various individual differences and find common ground on shared humanity, which leads us closer to Benhabib’s cosmopolitan federalism.

Read: Benhabib, Seyla. “Borders, Boundaries, and Citizenship.” PS: Political Science and Politics 38.4 (2005): 673-677.

The invalid Data Retention Directive and Estonia











§ 1111. Obligation to preserve data
1) tracing and identification of the source of communication;
2) identification of the destination of communication;
4) identification of the type of communications service;
6) determining of the location of the terminal equipment.
5) the telephone or mobile telephone service used;
1) the user IDs allocated by the communications undertaking;
2) a security authority;
5) a court pursuant to the Code of Civil Procedure;

Delfi vs Estonia ECHR judgment

Posted: October 10th, 2013 | Author: | Filed under: human rights, law, privacy, thoughts | No Comments »

Today, the European Court of Human Rights issued their long-awaited judgment in the case of Delfi vs Estonia. The case has implication for many human rights issues, including hate speech, anonymous speech, liability of internet portals for comments on their website etc.

As I currently understand the law, the provider is not liable when there is a notice-and-take-down system in place. This means that for example YouTube is not liable for any derogatory or infringing content that is uploaded until it has received a take down notice (which can be submitted by anyone) after which the content is made unavailable. This system is, of course, not perfect, because it allows to block also material that might not be infringing. It also means that the service provider should have the knowledge and expertise to identify content that is infringing from what is not, which poses specific problems. The lack of clarity and inconsistency of the notice-and-take-down system was also pointed out by the intervening third party Helsinki Foundation for Human Rights in Warsaw (which I had the pleasure of visiting and meeting with during the last weekend). See their written comments to the court (PDF).

The Delfi case involved a number of derogatory comments against Mr Leedo, who owns the company that provides ferry services between mainland Estonia and the two larger islands. The comments were extremely offensive (and are reproduced in English in para. 14 of the judgment).

The case will be commented in detail by many people, but here are my preliminary observations:

1. Not all news stories require the same degree of moderation of comments by the publisher. The court held that Delfi should have expected a number of hateful or defamatory comments due to the nature of the article and thus exercise extra caution:


This is an important distinction as the same could be said about articles that deal with other, sensitive topics such as issues related to ethnic minorities, migrants, LGBT rights etc in which areas at the moment there is uncontrolled hate speech. Does this mean that the publisher should put extra resources on moderation of the comments for these topics or should ban commenting altogether?

2. The notice-and-take-down system has to be effective in order to exclude liability of the publisher. Although there was a word-based automatic filtering system as well, the portal relied on a notice-and-take-down system, which allowed users to report comments they thought were offensive or illegal. Delfi had made it very easy to report offensive content with a single click (unlike twitter, which is only now starting to work out a reasonable system to report hate speech). The court thought that the systems were not adequate:


3. Liability of the publisher is related to the fact that submitters of comments were unable to modify or delete comments later. This means, according to the court, that Delfi had a substantial degree of control over the comments:


4. It is up to the publisher to decide which means to use in order to stop hate speech and defamatory comments. The court considered it to be an important factor that the domestic courts did not prescribe a specific remedy (i.e. moderation before publishing, etc). This means that it is up to the publisher to ensure that the exisiting protection system is adequate and effective.

5. The court does not ban anonymous expression or find that it is the cause of hate speech or defamation. The only thing the court said was that since users were not registered, it would have been more difficult to sue them directly. Since it allows comments for users that are not registered, it has a ‘certain responsibility’ for those comments. It goes on to state:


This approach by the court is problematic, because it might lead to anonymous commenting option to be removed in fear of liability. One wonders if similar comments made on a website which does not have a media company behind them would also result in a similar conclusion. Given the worrying trends of possibly illegal surveillance of internet activities, data-mining and the like, does it not make sense for people not to identify themselves and try to increase anonymity?

Finally, the court considered that the fine of 320 euros was not in any way disproportionate given the fact that Delfi was one of the largest Internet portals in Estonia. It seems that the court could have accepted a much higher financial penalty.

My advice to the news portals would be:

  1. Make notice-and-take-down system more effective by training the moderators and informing the users better;
  2. For stories for which hateful and defamatory comments are expected (high-risk stories), utilise a quick pre-moderation system or proactively and constantly screen comments for hate speech or defamation;
  3. Clarify the policies and increase transparency of the notice-and-take-down system;
  4. Allow users to modify or delete their own comments while remaining anonymous.

I have previously written that anonymous comments are not evil in themselves and removing the possibility is too severe infringement of freedom of expression that would not also have the intended effect. I am not happy that the court did not use this case to explore in more detail the issues related to anonymous expression online. I am a bit disappointed by the case made by Delfi, which they could have argued in a more powerful way, but the government’s lawyers should be commended for their thorough work.

The case does show very well the complexity of the issue and the difficulty in balancing different rights in the context of the Internet. Better and more clear rules on this are a necessity.















The impact of technology on the right to privacy

Posted: July 3rd, 2013 | Author: | Filed under: european union, human rights, law, privacy | No Comments »

In 1890 Louis Brandeis and Samuel Warren published in the Harvard Law Review an article called “The Right to Privacy”. They wrote:


It was the dawn of the age of the mass circulation gossip newspapers, aided by the improvements of the printing press and the invention of photography. This technological change prompted Brandeis and Warren to write their article and to call for legal protection of the right to privacy, which had already been enacted in France in 1868 (“11. Toute publication dans un écrit périodique relative à un fait de la vie privée constitue une contravention punie d’un amende de cinq cent francs.” Rivière, Codes Français et Lois Usuelles. App. Code Pen., p. 20.). In the article, Brandeis and Warren set out many of the principles that we follow to this day. Also, they called for both tort action with substantial compensation, injunctions as well as possible criminal sanctions for the violation of this right. Thus the right to privacy was born as a reaction to specific technological changes.

In the 1970s and 80s, when mass computing and databases had started to become prevalent, work started on international regulation of the right to privacy in the specific context. This resulted in the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (also known simply as Convention 108). The Convention entered into force in 1985 and has been ratified by 45 European states and Uruguay, including most recently by Russia in May 2013. This forward-looking document is the foundation of European rules on data protection. It sets the main principles related to data processing, including rights of individuals. Thus Europe already had before IT became commonplace a set of rules to adhere to.

In the European Union, data protection has recieved more attention than almost any other fundamental right. It is one of the more strongly protected rights in the EU level, having both its own Article in the founding treaties (since Treaty of Lisbon), strong protection in the Charter of Fundamental Rights of the EU, which became binding in 2009 together with the ToL, and a large body of secondary EU law (mostly directives), already since 1995’s Data Protection Directive. Again, these strong protections have been put to place as a consequence of advances in technology.

The fact that data has been protected in such a high degree in Europe and at the European level, has facilitated cross-border transmission of data, without which there would be a quagmire of different rules to follow. The EU data protection rules are currently being updated to react to the spreading of business models which involve trading with personal data (by mostly American companies such as Facebook, Google, Apple, Yahoo and Microsoft). These include the much debated right to be forgotten and the right of data portability, which means that you could move your data from one social media service provider to another, preventing customer lock-in.

With the NSA snooping scandal, an aspect of privacy has come about that had been forgotten by many. Although the focus has been on the private sector lately, it has become clear that the governments are more than ever capable and interested in finding out what people do and say online. No-one is off-limits, it appears.

In much of the same way as Louis Brandeis and Samuel Warren denounced the activities of gossip rags, it is important that there is a strong reaction in the form of legislation for the kind of invasion of privacy that has happened now. The answer is not to claim that privacy is dead (linked text in Estonian), but the opposite, rules and oversight must be made even stronger as a reaction to technological advances, just as we did when photography was invented. Those rules have to be smart and take into account the changing technological paradigm. Ultimately mankind can be successful if it can make technology work for it, rather than using it as an excuse to decrease human rights standards. We have outlawed reproductive cloning of human beings, eugenic practices and many other things that are technologically possible, but against the values on which our society is based on. So why cannot we keep 100% privacy in the digital age?

Of course the right to privacy as applied to Facebook is somewhat different than as applied to the tabloid newspapers. The underlying philosophical and ethical values are similar, but their application can vary. The individual has become much more empowered to control information about him or her than ever before. And that is a positive thing. Harvard scholars did recently a literature review on the privacy practices of the younger generation, and found surprisingly that privacy is as valuable as ever:

“The prevailing discourse around youth and privacy is built on the assumption that young people don’t care about their privacy because they post so much personal information online. The implication is that posting personal information online puts them at risk from marketers, pedophiles, future employers, and so on. Thus, policy and technical solutions are proposed that presume that young would not put personal information online if they understood the consequences.


The above research suggest we should not be worried about privacy becoming unimportant in the future, but rather how to guarantee that we can control the privacy of our online lives. This should include being informed about when and what the government (or other governments) are able to know about us and what are the oversight mechanisms that protect us from it. The national intelligence community should be also interested in this, because otherwise they will be faced with another snowden, another wikileaks every couple of years. If people are in general terms aware of what, why and how is being gathered and have reassurances about sufficient oversight then Edward Snowden’s revelations would not have had much news value. If, however, it will be business as usual, more revelations are bound to take place.

P.S. In a way governments, especially the US, have fallen victims of the technological change even more than any individual. Wikileaks and Snowden revelations have been deeply embarrassing and probably hugely damaging. So the governments too must decide whether aiming for more secrecy is viable or should openness and transparency be better in the long run.