Criminal Defamation of Public Officials
Provisions on the books.
Art. 275 of the Estonian Criminal Code criminalises defaming or insulting a “representative of state authority or other person protecting public order” in connection to that person’s official function. The punishment is a or imprisonment for up to two years.
In addition, Art. 375 of the Criminal Code punishes defaming or insulting a court or judge in connection to official function with a fine or imprisonment for up to two years.
Criminal Defamation of the Head of State
Criminal Defamation of the State and its Symbols
Provisions on the books.
Art. 245 of the Estonian Criminal Code prohibits defamation of the Estonian national flag, national coat of arms or any other official symbol of the Republic of Estonia. The punishment is a fine or imprisonment for up to one year.
Criminal Defamation of Foreign States and Symbols
Provisions on the books.
Art. 249 of the Estonian Criminal Code prohibits defaming the flag, anthem, or other official symbol of a foreign state. The punishment is a fine or imprisonment for up to one year.
Additionally, Art. 245 punishes defamation of an official symbol of an international organisation with a fine or imprisonment for up to one year.
Art. 247 criminalises defaming or insulting a person “enjoying international immunity”. The punishment is a fine or imprisonment for up to two years.
Criminal Defamation of the Deceased
In the case of defamation toward public officials, an official complaint is to be submitted and cases would then be brought by the public prosecutor.
Statistics on Application
For value judgments, plaintiffs are liable for “damaging personality rights“, including “passing undue judgment”, using a person’s name or image without authorisation, or invading a person’s private life
For assertions of fact, plaintiffs are liable for the “disclosure of incorrect information” that may violate personality rights or damage economic interests.
There are no caps on non-pecuniary damages for defamation in Estonian law.
A court may award non-pecuniary damages taking into account “the gravity and scope of the violation and the conduct and attitude of the person” (Art. 134, par. 5). However, it may also consider “the need to exert influence upon the person who caused the damage to avoid causing further damage” (Art. 134, par. 6).
The Act does not set specific limits on damages, however, the court must take into account “the nature of the liability, relationships between the persons and their economic situations, including insurance coverage”. Additionally, the court may reduce damages if the full amount “would be grossly unfair … or not reasonably acceptable for any other reason” (Art. 140).
Finally, in the case of the disclosure of incorrect information, the victim may demand that the person who disclosed such information refute the information or publish a correction at the person’s expense regardless of whether the disclosure of the information was unlawful or not (Art. 1047, par. 4).
The Law of Obligations also explicitly establishes the following defences.
Truth: For assertions of fact, truth is a defence, and the burden of proof lies with the defendant. It is also a defence if the defendant “was not aware and was not required to be aware” that the information was false (Art. 1046, par. 1).
Reasonable publication: Regardless of whether a factual assertion turns out to be true, its publication is not actionable if the the recipient had a legitimate interest in hearing them and if the defendant “checked the information or facts with a thoroughness which corresponds to the gravity of the potential violation” (Art. 1047, par. 3).
Honest opinion: For value judgments, the violation of a personality right is not actionable if “justified considering other legal rights protected by the law and the rights of third parties or public interests” (Art. 1046, par. 2). In addition, the law states that “[u]pon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration”.
Media Cases and Case Law
Notable cases involving the media.
In a decision that ultimately reached the European Court of Human Rights, the Estonian courts held a news site civilly liable for defamatory, anonymous user-generated content even though the site had immediately taken down the content upon request of the offended party.
In 2006, the news site, Delfi, ran an article concerning the actions of Saaremaa, a company providing ferry service between the Estonian mainland and nearby islands. As with all Delfi articles, space was provided at the bottom for user comment. Regulation of the comments was done by automatic filtering and a notice-and-take-down system. Six weeks after publication, “L”, the majority shareholder of Saaremaa, requested that 20 of the anonymous comments be removed (Delfi immediately complied). However, L also filed civil suit against Delfi for defamation, claiming EEK 500,000 (€32,000) in damages. There was no dispute as to the offensive nature of the cited comments, many of which were threatening to L (one of which encouraged him to be put in an oven).
Estonia’s Information Society Services Act (Infoühiskonna teenuse seadus) protects providers from liability as long as they do not initiate the transmission, select the receiver of the transmission, or select or modify the information contained in the transmission. However, the Estonian courts determined that Delfi could not be considered such a passive, neutral provider because it was a “profit-oriented company which had invited visitors to its portal to comment on its articles”, had an economic interest in increasing the number of comments to boost advertising revenue, and had not exericsed “the due diligence” necessary to protect the right to reputation. Delfi was ultimately ordered to pay damages in the amount of EEK 5,000 (€320).
Delfi appealed to the European Court of Human Rights, which against the site. The Court stressed that it was not its role to prempt the Estonian courts’ interpretation of its own law (i.e. the Information Society Services Act). The Court then concluded that the site’s automatic filtering and notice-and-take-down system “did not ensure sufficient protection for the rights of third persons”, and held that the site had an active responsibility to remove user-generated comments that went beyond the limits of acceptable criticism. Thus despite the site’s having removed the content immediately upon request, the Court considered that the site should have known that the article in question “might cause negative reactions against the shipping company and its managers and that, considering the general reputation of comments on the Delfi news portal, there was a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism.” Therefore, in the Court’s view, the site should have taken extra precautions to protect the reputations of those involved.
In June 2015, the Grand Chamber of the European Court of Human Rights the decision against Delfi. In its decision, it noted that the amount of damages awarded in this case could not be considered excessive.
The decision has been highly criticised by Court observers and freedom-of-expression groups for placing the onus of anticipating and policing anonymous defamatory content on news sites, thereby violating the spirit of intermediate privilege and the concept of the Internet as a “public square.” There is also concern that sites will, on the basis of the decision, engage in unnecessary censorship in order to avoid liability or simply do away with anonymous comment sections altogether.
Recent Legal Changes
No known relevant changes.
Legal Sources and Acknowledgements
Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at ipi[at]freemedia.at.
Information on Estonia was last updated in January 2015.