[31] This case may well be fact sensitive and indeed subject to an appeal to the Grand Chamber. Time will tell whether the line of reasoning of the ECHR in this case is the start of a new movement towards a broader monitoring obligation of intermediaries or if it is only applicable to the specific events in this case.
[32] Re reading this case I experienced a sense of shrinking relevance to the instant case. It is distinguishable from the facts now under consideration if for no other reason than that the parties responsible were identifiable. It is perhaps also important to appreciate that in the Delfi case the E-Commerce Regulations 2002 did not play a part. Each EU Member State has implemented the EU Directive on E-Commerce (2000/31) Article 14 which includes an exception for "hosting" when a company providing an information storage service (ie. hosting comments under its articles), does not have knowledge of the unlawful activity or information and upon being made aware of it acts expeditiously to remove or prevent access to the information. The Estonian Supreme Court had rejected Delfi's attempted use of that provision but the ECHR only considered whether the particular Estonian law under which Delfi was liable was an unlawful interference with Delfi's rights or free expression. The UK has transposed the EU Directive into its national law with the E-Commerce Regulations 2002. (See reference to Regulation 19 above at paragraph [19] above). Courts in the United Kingdom e.g. Tamiz v Google [2012]EWHC449 have concluded that the practice of websites monitoring comments (anonymous or otherwise) and swiftly removing defamatory ones when they are brought to their attention has so far been sufficient to help most companies avoid liability. The ECHR ruling does not in my view therefore suggest that such an interpretation of the EU Directive is incorrect. It is still up to the national laws of a country to decide if a company is liable in the first place and the European Court of Justice remains an alternative avenue for appeal.
[33] Accordingly, I am unpersuaded despite having taken its findings into account that the case of Delfi is sufficient to aid the plaintiffs in this case.
[34] I therefore discharge the second interim injunction.