Words have a cost, so do offensive words and false facts. A comment posted on the web can lead to a claim, usually filed by a lawyer of someone who feels offended. This is an ever-increasing trend in Estonia, and there are a lot of such claims. The purpose of the letters of claim is usually to ask for money for non-pecuniary damage caused by incorrect factual statements or inappropriate value judgments. Non-pecuniary damage is expressed in the fact that a person has been demeaned, discomfort, and embarrassed.
According to the case-law, there are inappropriate values whose vulgar, ridiculous, and degrading meaning is comprehensible to the average reasonable reader.
Amount of damages
According to the Estonian Supreme Court, in the case of a violation of personal rights, it should be noted that it is not possible to compensate for non-pecuniary damage by means other than financial compensation. This is usually considered refuting false information.
At the same time, there are also decisions where commenters have been ordered by the court to pay compensation and the amounts vary between 100 and 10 000 euros. The average amount of compensation awarded in 2017 was 2 700 euros. Higher compensation has mostly been claimed by persons subject to a high public interest, whose rights may be more affected by the disclosure of false information.
The courts have held that a person who is in a better economic position should, as a general rule, be ordered to pay higher compensation for non-pecuniary damage, since modest compensation may not motivate that person to refrain from causing further damage.
- “Sadist, jorsid (slang in Estonian meaning a weird person), please find and castrate the culprits, such a fagot”, etc. Non-pecuniary damage was awarded in the amount of 1 500 euros.
- “Chain dog”, “It would be better if KAPO (Estonian Internal Security Service) had detained transport directors XXX and XXXe, who systematically accept bribe and use their position for their own benefit to accept bribes” 200 euros were ordered.
- In the present case, the defendant has sent a number of letters to the applicant since 14 December 2014 which are derogatory to the applicant (e.g. the defendant has described the applicant as a fool and an idiot in the letters). 200 euros were awarded.
- “She is also aware of her husband’s mental health… We think that JS’s work as a nurse in the outpatient clinic is related to the fact that nothing concrete has been done with JS.” “We think that JS is complicit in this story and that her mental health also needs psychiatric examination.” 2 000 euros was awarded.
- Simply uploading images to an environment created by the employer to upload files does not give the employer the right to distribute the photos depicting another person’s private life, to third parties. 1000 euros were awarded.
- Corruption of a politician. The evidence submitted in the case has not proven the accuracy of the allegations made by the defendant – 10,000 euros.
- Forum posts in the Perekool forum. Under the forum posts, third parties submitted comments containing incorrect information about the applicant and inappropriate value judgments – 3840 euros.
What to do if you have received a letter of claim
The submitted letter of claim does not oblige anyone to pay the requested amount. However, in the event of a refusal, the dispute may be brought before a court if the claimant is sufficiently certain of their rights. It must be borne in mind that litigation usually involves large additional costs which are ultimately reimbursed by the losing party.
- Have you committed the act? Has the plaintiff chosen the right person? There are examples in Estonia where attempts have been made to direct responsibility to a person who has not written the comment. In such cases, the courts have ordered the plaintiff to pay the procedural expenses of the wrong person.
- Is it possible to prove who committed the act? The person who has written and published the comment can be held civilly liable, not the person who owns the Internet connection. In Estonia, there are examples where claims have been submitted to institutions through whose internet network (by IP address) the comment has been made.
- Does the comment contain incorrect factual allegations? It is necessary to assess what the allegation is and whether it can be substantiated.
- Is it an inappropriate value judgment? What is the meaning of a comment in ordinary language and how does the average reasonable person understand it?
- In case of incorrect factual statement or inappropriate value judgment (insult), try to correct the situation (take off the comment, apologize publicly to the person). The court assesses this when determining the number of damages.
- Assess what would be the number of damages the court would award. If you have made offensive comments, try to reach a compromise so that you will pay part of the claim and issue an apology.
- If you find that the claim is not fair, prepare for litigation. Gather the evidence: the commented article and comments, the evidence of factual statements, the meaning of the value judgments in ordinary language, etc.