In the recent decision, the Tartu-based Supreme Court found in cassation that an earlier decision made by the first tier Harju County Court, as well as the second-tier circuit court, was inadequate in respect of an apology in the case of an online comment which offended an individual's honor and dignity – including an individual who is a public figure.

The Supreme Court has never before made such a statement directly, Pild noted – ie. that an apology and a judgment are insufficient to rectify non-pecuniary damage.

In fact, in a case from 2005, Pild said, the top court made a decision that was essentially the polar opposite, while Estonian courts have followed that precedent hitherto.

She cited as an example that in 2005, the Supreme Court made a decision that basically said the opposite, and Estonian courts have followed this decision until now.

Pild told ERR that: "This practice has been followed by the courts at the various court levels and in cases where an apology has been made and where the courts have said that the decision itself is sufficient, since the violations are not serious."

"The court also takes into consideration whether the plaintiff is a public figure, what the individual is engaged in in their everyday life, how blatant the comment or another statement is; all this is weighed up," Pild added.

However, now, and for the first time, the Supreme Court has issued a very, very clear statement that neither the court decision alone – if that states that the defendant expressed themselves in a very unpleasant way – nor the apology is sufficient; that there must now be money involved.

"The Supreme Court has not stated exactly how much this compensation must come to, but has ruled that the only viable remedy for mental pain incurred is paying financial compensation," Pild added.

Decisions made by the Supreme Court of Estonia, at least in the field of civil law, are not binding on other judges in other cases, but this still represents an important guideline, one on which the assumption can be based that the Hunt case will set a very important precedent in similar courtroom cases, she added.

"If we consider practice, Supreme Court decisions represent precedents, which lower courts take into account and follow. Every lawyer, every representative, at court hearings, certainly refers to Supreme Court practice. So this decision will definitely make its impact. It would be viable for a lower court to rule that in some other case there are however, circumstances which are different, and that there is no time to proceed on the basis of what the Supreme Court has said before."

"But past practice shows that this ruling will be very important, while this principle will most likely be followed in the lower courts," Pild went on.

Pild added that there is also a difference of opinion on this issue among Estonian legal scholars. "This will prove interesting, because there are very often no such schools of thought in Estonia, while not all lawyers agree on this issue," he said.

Compensation not high in relation to internet comments

The county court in the Hunt case must now comply with the Supreme Court's guidelines and, among other things, determine the amount of financial damages to be awarded.  Pild said that while the sum involved will not be large, it will be difficult to determine, also.

Pild said: "When drawing up damages, a court has to analyze quite a few aspects which are not directly written into the law. The court has to take into account the circumstances arising from judicial practice – the scope of the claim in question."

"It would be one thing if the claim was made in response to something by a professional journalist published by ERR, Postimees or Äripäev, for instance; one online comment submerged among many similar comments, well these carry a different weight," Pild added.

How this statement is spread, how vulgar it was, how it affected the person. It is very different when it comes to a person in the role of a public figure, who maybe has a bit thicker skin; if it's a normal person, the effect can be different. All these circumstances are taken into account to say what this amount is," Pild said.

Pild added that an insult or a false statement appearing in the professional media is treated much more seriously.

"If this was done by a professional publication, then we will take this expression much more seriously, while the European Court of Human Rights (ECHR) has instructed to act in the same way," Pild added.

Pild noted that the ECHR has found the same, namely that Internet conversations should not always be given as much credence, because they often employ a looser style and a different mode of communication.

"The Human Rights Court has directed that any such senseless expression should not result in financial compensation at all. At the moment, it seems that the Supreme Court, at least in this matter, has gone the other way," he said.

"The ECHR has ruled that any irrational public expression should not lead to any type of financial compensation. So at present, it seems the Supreme Court has, at least on this matter, gone in the opposite direction."

Specifically in the Hunt case, damages will likely amount to a few hundred euros, though the legal costs will be much higher, in the thousands, while the defendant will have to bear those, Pild added.

An implied statement of fact can lead to confusion

According to the Supreme Court's opinion in the case of Brigitte Susanne Hunt (Hunt is a socialite and consequently a public figure as a result of that-ed.) both lower courts established that an indirect factual statement had been made about Hunt (stating that "the wallet is between the two legs"), a statement which Hunt also relied upon when filing the lawsuit.

According to Pild, however, there is always confusion in the courts in respect of implied factual claims.

"Looking at this as a media lawyer – this is the worst situation; one where a plaintiff goes to court and says that an indirect statement of fact has been published. When writing a text, a journalist cannot always foresee what may be inferred from this text; will be analyzed later in court, with kid gloves. The court will make the final decision, and in doing so, put themselves in the shoes of a reasonable person, as it where. However, it is often the case, when representing journalists, that we see opinion split, on what can be read into the article, and how far the derivation can be stretched. I can understand the Supreme Court wanting to say that publishers or journalists cannot hide behind a subtle expression then say that there is nothing factual here. This boundary is surely extremely thin, and inevitably leads to confusion in every court case. The court will then have to ascertain whether an implied statement of fact has been published or not."

Last Thursday, the Supreme Court satisfied in cassation an appeal from Brigitte Susanne Hunt and annulled the decisions of Tallinn Circuit Court and Harju County Court, both of which had rejected her lawsuit against the internet commentator who was ruled to have insulted her, in the comments section of a 2019 article published on the website of evening newspaper Õhtuleht.

The Supreme Court sent the case to the County Court for a new review.

--

Follow ERR News on Facebook and Twitter and never miss an update!