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FOURTH
SECTION
CASE OF NISKASAARI AND OTHERS v. FINLAND
(Application
no. 37520/07)
JUDGMENT
STRASBOURG
6
July 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Niskasaari and Others v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku, judges,
Anne E. Niemi, ad hoc judge,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 37520/07) against the
Republic of Finland lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by two Finnish nationals, Mr Mikko Niskasaari and Mr Jouni
Flinkkilä, and by a Finnish limited liability publishing company
Yhtyneet Kuvalehdet Oy (“the applicants”), on 30 July
2007.
- The
applicants were represented by Mr Heikki Salo, a lawyer practising in
Helsinki. The Finnish Government (“the
Government”) were represented by their Agent, Mr Arto Kosonen
of the Ministry for Foreign Affairs.
- On
19 January 2009 the
President of the Fourth Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
- Ms
P. Hirvelä, the judge elected in respect of Finland, withdrew
from sitting in the case (Rule 28 of the Rules of Court). The
Government accordingly appointed Ms Anne E. Niemi to sit as an ad
hoc judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first and second applicants were born in 1952 and 1948 respectively
and live in Helsinki. The applicant company has its seat in Helsinki.
The first applicant is a freelance journalist and the second
applicant editor-in-chief of Seura magazine.
- On
20 December 1996 an article written by the first applicant was
published in issue no. 51-52/1996 of Seura magazine. It stated
in the headline that the Child Ombudsman in the Mannerheim League for
Child Welfare (Mannerheimin lastensuojeluliitto, Mannerheims
barnskyddsförbund), which is a non-governmental
organisation, had been removed from office (in Finnish:
“Lapsiasiamies hyllylle”) and in the text, inter
alia, that the Ombudsman (henceforth “X.”) had been
transferred to do research work and that she would not be replaced as
Ombudsman (“... [hänet] siirretään
tutkijaksi, eikä hänelle palkata sijaista
lapsiasiamieheksi”). The article also stated that the
Ombudsman had no training or experience in research work. The general
tone of the article was critical. During the subsequent court
proceedings the first applicant argued that when writing it he had
relied on information given in a tabloid article published on 11
December 1996. He considered that no reason had emerged to believe
that the information contained therein was not true.
- Issue
no. 4/1997 of Seura magazine included a rectification by the
press officer of the Mannerheim League for Child Welfare, stating
that the information concerning removal from office was groundless.
The rest of the rectification stated the following:
"[i]n 1995 X.
was awarded a grant for three months which she used last autumn. X.
will also have three months' research leave in 1997. X will take this
leave at a later stage to be agreed upon.
"The research leave does not
affect X.'s position as the Child Ombudsman in the Mannerheim League
for Child Welfare in any way."
- On
29 October 1997 X. requested the police to investigate the matter. On
28 April and 30 April 1998 the first and the second
applicants were questioned by the police. In her concluding statement
of 16 December 1998 X. pursued a compensation claim against all the
applicants. The pre-trial investigation was completed on 1 November
1998.
- On
3 April 2000 the public prosecutor preferred charges against the
first and second applicants. The next day the case became pending
before the Espoo District Court (käräjäoikeus,
tingsrätten). X. concurred with the
charges brought by the public prosecutor and supplemented the
description of the defamation charges. On an unknown date X.'s
compensation claim, together with her claim for costs and expenses,
was joined to the criminal charges.
- On
5 May 2000 the District Court invited the parties' written
submissions. According to the applicants they were served with the
summonses only in November 2000.
- On
26 May 2003 the District Court held a preparatory hearing. A second
preliminary hearing was held on 19 September 2003.
- The
District Court heard the case over three days during the period from
1 to 9 December 2003. It heard thirteen witnesses and received a
significant amount of documentary evidence.
- On
19 January 2004 the District Court gave judgment, convicting the
first and second applicants of defamation (painotuotteen kautta
tehty julkinen herjaus, offentlig smädelse skett genom
tryckalster), sentencing them to forty day-fines, amounting to
EUR 240 and EUR 2,360 respectively, and ordering them, together with
Yhtyneet Kuvalehdet Oy, the publishing company, to pay non-pecuniary
damages to X. in the amount of 5,000 euros (EUR) plus interest and to
reimburse two thirds of her costs and expenses, that is, EUR 17,172
plus interest. The reimbursement of costs was only partial, on the
ground that X. was considered to have submitted some pieces of
evidence which had not been relevant to the case.
- The
District Court's conclusions from the evidence presented were the
following:
“The defendants being guilty of defamation
1. Allegation concerning the transfer of
[X.] to research work
Excluding the headline and the caption, the article
referred to in the indictment was drafted by [the first applicant].
It was written in the article, in a manner described in the
indictment, that [X.] is transferred to
do research work. This passage of the article was the basis of the
headline, "Child Ombudsman removed from office".
It appears from the testimonies of witnesses [I.],
[K.-T.], [W.] and [K.] that [X.] had not
been transferred to a researcher post but that she had instead
undertaken research work and had therefore been on 80% research leave
from 1 October to 31 December 1996.
On 11 December 1996 Ilta-Sanomat published an
article reporting on [X.'s] transfer to
research work. The defendants have invoked this article, arguing that
it and the article referred to in the indictment had no essential
difference and that [X.] has not claimed
rectification or filed a criminal complaint on account of the article
in Ilta-Sanomat.
The District Court holds that there is a relevant
difference between reporting that a person will transfer or has
transferred to other tasks and reporting that the person has been
transferred to other tasks. The latter wording, which [the first
applicant] has used in his article, is negative vis-à-vis
a person, such is also the headline of the article, which is based on
this wording and alleges [X.'s] removal from office. Such a wording
suggests that the person in question has committed some misconduct in
his or her work or performed it inappropriately and is therefore
removed from office and transferred to other tasks due to his or her
own fault. In [X.'s] case such a
transfer did not take place, and the information given in the article
was incorrect. This incorrect information disclosed in the article
included a hint that [X.], when performing her work, had been guilty
of an act which warranted her transfer to other tasks. This incorrect
information was conducive to causing damage to her performance in
office and to her success. Furthermore, [X.'s] tasks were not changed
at the turn of the years 1996-1997.
...
3. Experience of and training for research work
It is stated in the indictment that the article has
aimed to strengthen the impression given by it that the transfer of
[X.] to research work was due to her poor performance in office, by
writing that [X.] has no experience of or training for research work.
It has appeared in the matter, also from [X.'s]
testimony, that the information about the lack of research experience
and training is not false as such. In a manner described in the
indictment, this reference is connected to the allegation made in the
article that [X.] had been transferred to research work. However, as
the allegation of transfer has been found incorrect, the information
about [X.'s] lack of research experience and training, truthful as
such, has, in the manner described in the indictment, strengthened
the erroneous impression given by the article that [X.] had been
transferred to other tasks due to her own fault, and even to tasks
for which she was unqualified in
terms of training and experience. In the context in
question, the information violated [X.'s] honour and strengthened the
significance of the incorrect information disclosed in the article.
4. Summary
The article provided incorrect information about the
removal of [X.] from office and her transfer to research work and
emphasised the significance of the alleged transfer by stating that
[X.] lacks the necessary training and experience. To this extent the
article gave the reader the picture that the alleged transfer was due
to [X.'s] poor performance of the tasks of Child Ombudsman. The
article contained incorrect information which was conducive to
causing damage to [X.'s] performance in office and her success. [The
first applicant], responsible for the text of the article, and [the
second applicant], responsible for the text and the headline of the
article, have not verified the information given in the article
although it was easily verifiable from the Mannerheim League for
Child Welfare, for example from Secretary General [I.]. The
information about the transfer of [X.] to research work has been the
erroneous conclusion of [the first applicant], and the headline of
the article, an aggravated expression highlighting the erroneous
allegation, which has been created by the editorial staff on the
basis of the said conclusion.”
- On
23 February 2004 the District Court, on the request of the first and
second applicants and X., extended the time-limit for appealing
against the judgment until 18 March 2004. The time-limit for filing a
counter-appeal was fixed at 1 April 2004.
- The
applicants appealed to the Helsinki Court of Appeal (hovioikeus,
hovrätten). In a counter-appeal dated 1 April 2004 X.
argued, inter alia, that the appellate court should increase
the compensation payable to her.
- The
case was heard over two days, on 13 and 15 June 2006, in the Court of
Appeal. On 31 August 2006 it upheld the lower court's judgment.
- The
Court of Appeal's assessment of the evidence was the following:
“The Court of Appeal holds that no reason exists
to assess the evidence presented in the case differently from the
assessment made by the District Court regarding the incorrectness of
the article published in Seura magazine. Thus, the article in
issue was not truthful to the extent that it alleged that [X.] had
been transferred to do research work. Likewise, the headline of the
article and the caption under [X.'s] photograph, which were based on
the said allegation, were untruthful. The Court of Appeal holds, in
line with the District Court, that the article published in
Ilta-Sanomat on 11 December 1996, which, according to
[the first applicant] was the basis for his article, has not
corresponded to the article published in Seura in respect of
the parts in issue. According to the headline of the article in
Ilta-Sanomat, [X.] has undertaken research work, and according
to the text of the article itself, [X.] was transferring to research
work. The article also stated that [X.] had agreed on the change to
research work more than one year earlier, that [X.] had already
started a special study in addition to her daily work as the Child
Ombudsman and that the main emphasis of her work would be shifted
onto research and that according to [the Secretary General], no
replacement was needed for the Child Ombudsman. Although witness [V.]
had reported that when writing the article Ilta-Sanomat had
thought that there were conflicts behind [X.'s] changeover to
research work, the article in the newspaper cannot lead to the
conclusion that [X.] was transferred to research work for such
reasons. Therefore, [the first applicant] could not have based his
allegation about the transfer of [X.] on the article in Ilta-Sanomat.
The fact that witness [V.] remembers having read about [X.'s]
changeover in some little article in another news publication or in
some press release already, is without significance in assessing the
liability of [the first applicant]. Further, it has not been
substantiated solely on the basis of the testimony of witness [V.]
that such a piece of news or press release even existed. Neither has
it been clarified that the leaders of the Mannerheim League for Child
Welfare were otherwise revising the job description of [X.] as the
Child Ombudsman in 1996. Therefore, it is to be considered that [the
first applicant], by failing to verify the truthfulness of the
allegation of transfer of [X.] to research work, intentionally,
against his better knowledge, made a false allegation, which may have
subjected [X.] to contempt or caused damage to her livelihood or
success.
[The first applicant] has submitted that he did not
write the headline and the caption of the article in Seura.
[The second applicant], too, has submitted that the headline and the
caption were written by editorial staff, probably by a subeditor.
However, [the second applicant] has admitted that he, as the
editor-in-chief, was also responsible for the headline of the
article, which the groundless allegation by [the first applicant]
made possible.
[The second applicant] has submitted in the Court of
Appeal that he did not read the article by [the first applicant] in
advance or discuss it with him. However, when questioned in the
pre-trial investigation, he remembered the incidents better. [The
second] applicant has reported in the police investigation on 30
April 1998 that he discussed the article and its truthfulness with
[the first applicant] before it was published. No reason exists to
doubt the reliability of the testimony given by [the second
applicant] in the pre-trial investigation. It has thus been
substantiated that [the second applicant] approved the publishing of
the article. Therefore, the second applicant has intentionally
published the false allegation described above.
On the aforementioned grounds and otherwise on the
grounds stated by the District Court, it has been substantiated that
[the first and second applicants], are guilty of public defamation,
against their better knowledge, committed through printed material
under Chapter 27, section 1, of the Penal Code in force at the time
of the offence, as imputed to them by the District Court. The act
also fulfils the essential elements of defamation under the current
Chapter 24, section 9, subsection 1, of the Penal Code. Since the
offence was committed through mass media, and considering the
circumstances mentioned by the District Court in the reasoning for
its judgment and the fact that the article gives the picture that
[X.] had committed misconduct in work or performed it inappropriately
and was therefore transferred to other tasks against her own will,
the defamation is also to be considered aggravated when assessed as a
whole. Since applying the new law will thus not lead to a more
lenient result than the law in force at the time of the offence, the
earlier Chapter 27, section 1, of the Penal Code is to be applied.
...”
- On
30 October 2006 X. and the applicants applied for leave to appeal to
the Supreme Court (korkein oikeus, högsta domstolen),
referring, inter alia, to Articles 6 and 10 of the Convention.
Leave was refused on 1 February 2007.
Other events
- Meanwhile,
on 11 December 2003 the Mannerheim League for Child Welfare decided
to wind up the functions of the Child Ombudsman with effect from 1
February 2004. In a final judgment of 27 October 2006 the Helsinki
District Court held that X.'s duties had been unlawfully terminated.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Legislation
- Chapter
27, section 1, of the Penal Code (rikoslaki, strafflagen, Act
no. 908/1974, as in force at the relevant time) provided as follows:
“A person falsely alleging, contrary to his or her
better knowledge, that someone has committed a named offence or a
named type of an offence, or other act, which might make this person
an object of contempt or might affect his or her trade or success, or
who spreads a lie or a false rumour about someone, is to be convicted
of defamation and sentenced to imprisonment for at least one month
and at most one year or to a fine of at least [one hundred marks].
If defamation is made in public or through a printed
publication, in writing or through pictorial presentation, which the
offender distributes or has distributed, the punishment is
imprisonment of at least two months and at most two years or a fine
of at least [two hundred marks].”
- Chapter
5, section 6, of the Tort Liability Act (vahingonkorvauslaki,
skadeståndslagen, Act no. 412/1974, as amended by Act no.
509/2004) stipulates that damages may also be awarded for distress
arising inter alia from an offence against liberty, honour,
home or private life. Under Chapter 5, section 1, of the said
Act, damages shall constitute compensation for personal injury and
damage to property. Section 2 provides that a person who has suffered
personal injury shall be entitled to damages to cover medical costs
and other costs arising from the injury, as well as loss of income
and maintenance and pain and suffering.
- According
to the government bill to amend the Tort Liability Act (HE 116/1998),
the maximum amount of compensation for pain and suffering from, inter
alia, bodily injuries had in the recent past been approximately
FIM 100,000 (EUR 16,819). In the subsequent government bill to amend
the Tort Liability Act (HE 167/2003, p. 60), it is stated that
no changes to the prevailing level of compensation for suffering are
proposed.
Self-regulation of journalists
- The
Union of Journalists in Finland (Suomen Journalistiliitto,
Finlands Journalistförbund ry) publishes Guidelines for
Journalists (Journalistin ohjeet, Journalistreglerna)
for the purposes of self-regulation. The 1992
Guidelines were in force at the material time and provided, inter
alia, the following:
“Section 8: In his/her work, a journalist must aim
for truthful, relevant and diverse communication.
Section 9: Information sources must be approached
critically. This is particularly important in controversial issues,
since the source of the information may have an intention of personal
gain or to damage others.
Section 10: Any information obtained must be checked as
thoroughly as possible, including cases where the information has
been published previously.
Section 11: The public must be able to distinguish facts
from opinions and fictitious material. This principle does not limit
the choice of journalistic style and format.
Section 12: Headlines, leads, cover and picture
captions, sales-promotion posters and other presentation material
must be justified by the body of the story.”
- New
Guidelines, which came into force in 2005, include similar
provisions.
III. RELEVANT INTERNATIONAL MATERIALS
- On
4 October 2007 the Parliamentary Assembly of the Council of Europe
adopted Resolution 1577 (2007), Towards decriminalisation of
defamation, in which it urged those member States which still
provide for prison sentences for defamation, even if they are not
actually imposed, to abolish them without delay.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE FIRST AND SECOND APPLICANTS
- The
first and second applicants complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, laid down in Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- By
a letter dated 31 August 2009 the Government informed the Court of
their unilateral declaration, signed on the same date, with a view to
resolving the issue raised by this complaint in respect of the first
and second applicants.
- The
declaration provided as follows:
“1. Whereas the
efforts with a view to securing a friendly settlement of the case
have been unsuccessful, the Government wishes to express –
by way of its unilateral declaration – its acknowledgement that
with respect to the first and second applicant, in the special
circumstances of the present case, the length of the criminal
proceedings have failed to fulfil the requirement of ”reasonable”
within the meaning of Article 6 § 1 of the
Convention.
2. Consequently and taking into account that
the first and second applicants have claimed for a total sum of EUR
10,000 (EUR 5,000 each) for the compensation of non-pecuniary damage,
the Government is prepared to pay the first and second applicants in
compensation a total sum of EUR 11,000 (eleven thousand euros). This
sum includes EUR 10,000 for non-pecuniary damage and EUR 1,000 for
costs and expenses (inclusive of VAT). In the Government's view, the
aforementioned total sum would constitute adequate redress and
sufficient compensation for the impugned length of the said criminal
proceedings, and thus constitute an acceptable sum as to quantum
in the present case.
3. The total sum will be payable within three
months from the date of notification of the decision pursuant to
Article 37 § 1 (c) of the Convention. In the event of a failure
to pay this sum within the said three-month period, the Government
undertake to pay simple interest on it, from the expiry of that
period until settlement, at a rate equal to the marginal lending rate
of the European Central Bank during the default period plus three
percentage points.
4. In the light of above, the Government
would suggest that the circumstances of the present case allow the
Court to reach the conclusion that there exists 'any other reason',
as referred to in Article 37 § 1 (c) of the Convention,
justifying the Court to discontinue the examination of the
application in terms of the alleged violation of Article 6 § 1
of the Convention with respect to the first and second applicants,
and that, moreover, there are no reasons of a general character, as
defined in Article 37 § 1 in fine, which would require
the further examination of the case by virtue of that provision.
Accordingly, the Government invites the Court to strike the
application in terms of the alleged violation of Article 6 § 1
of the Convention with respect to first and second applicants out of
its list of cases.”
- In
a letter of 7 October 2009 the applicants considered that the
unilateral declaration constituted a forced settlement but they did
not object to the Government's willingness to pay the amount of
compensation in question. However, in their view, this complaint
required further examination by the Court.
- The Court notes that both
parties filed submissions with the Registry in the context of
friendly settlement negotiations (Article 38 § 1 (b) of the
Convention and Rule 62 of the Rules of Court). No settlement was
reached.
- Article
37 of the Convention provides that the Court may, at any stage of the
proceedings, decide to strike an application out of its list of cases
where the circumstances lead to one of the conclusions specified
under (a), (b) or (c) of paragraph 1 of that Article. Article 37 §
1 (c) enables the Court in particular to strike a case out of its
list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
- Article 37 § 1 in
fine includes the following proviso:
“However, the Court shall continue the examination
of the application if respect for human rights as defined in the
Convention and the Protocols thereto so requires.”
- The Court points out that, under
certain circumstances, it may be appropriate to strike out an
application, or part thereof, under Article 37 § 1 (c)
of the Convention on the basis of a unilateral declaration filed by
the respondent Government even if the applicant wishes the
examination of the case to be continued. In deciding whether or not
it should strike the length of proceedings complaint out of its list,
the Court will examine the terms of the declaration made by the
Government in the light of the principles emerging from its case-law,
in particular its judgments in cases such as Tahsin
Acar v. Turkey [GC] (no. 26307/95,
§§ 75-77, ECHR 2003-VI); Meriakri
v. Moldova ((striking out),
no. 53487/99, 1 March 2005); Swedish
Transport Workers Union v. Sweden ((striking
out), no. 53507/99, 18 July 2006); Van
Houten v. the Netherlands ((striking
out), no. 25149/03, ECHR 2005 IX), Kalanyos
and Others v. Romania
((no. 57884/00, § 25, 26 April 2007)), and K.K.
v. Finland ((striking out), no.
7779/04, 27 November 2007).
- The Court observes
that the criminal proceedings lasted eight years and nine months
at three levels of jurisdiction. It notes that
the Government's declaration contains a clear acknowledgment that the
“reasonable time” requirement has not been respected
within the meaning of Article 6 § 1 of the Convention. The
Court is satisfied that the total amount offered to the first and
second applicants by the Government in compensation for non-pecuniary
damage and costs and expenses, that is 11,000 euros, constitutes
adequate redress for the excessive length of the proceedings having
regard to all the circumstances of the case, and that this amount is
consistent with the amounts awarded in other similar cases.
- The
Court has established in a number of cases its practice concerning
complaints about the violation of one's right to a hearing within a
reasonable time (see, for example, Frydlender v. France [GC],
no. 30979/96, § 43, ECHR 2000-VII and Cocchiarella v.
Italy [GC], no. 64886/01, §§ 69-98, ECHR 2006-).
Furthermore, it has already had occasion to address complaints
related to alleged breach of one's right to a hearing within a
reasonable time in cases against Finland (see, for example,
Riihikallio and Others v. Finland, no. 25072/02, §§
22-27, 31 May 2007; Ekholm v. Finland, no. 68050/01, §§
62-66, 24 July 2007; and Rafael Ahlskog v. Finland, no.
23667/06, §§ 18-24, 13 November 2008).
- Against this background, the
Court considers that it is no longer justified, within the meaning of
Article 37 § 1 (c) of the Convention, to continue the
examination of this part of the application, and finds no reasons
which would require the further examination of this part of the case
(Article 37 § 1 in fine).
- Accordingly, it should be
struck out of the list.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE APPLICANT COMPANY
- The
applicant company also complained under Article 6 § 1 of the
Convention about the length of the criminal proceedings.
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- As
to the period to be taken into consideration, the parties disagree on
the date when the proceedings began in respect of the applicant
company. The Government maintained that the period to be taken into
account had begun when the applicant company became aware of the
claims presented against it, that was, during the oral hearing in the
District Court which had begun on 1 December 2003. The applicant
company maintained that the period to be taken into account had begun
at the latest on 16 December 1998 when X. had submitted her
compensation claims for the first time.
- The
Court notes that the period to be taken into account began to run
when the applicant company became aware of the claims presented
against it. The compensation claims submitted by X. were apparently
served on the applicant company only in November 2000. Thus, the
proceedings started to run from the date of that event and they ended
on 1 February 2007 when the Supreme Court refused leave to appeal.
They thus lasted some six years and three months at three levels of
jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicants and the relevant authorities (see,
among many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II).
- The
Government maintained that the proceedings had not violated the
“reasonable time” requirement in the present case.
- The
applicant claimed that, as the proceedings had lasted in this simple
matter approximately nine years, the “reasonable time”
requirement had been violated.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings in respect of
the applicant company was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1 in respect of the
applicant company.
III. ALLEGED VIOLATION OF
ARTICLE 10 OF THE CONVENTION
- The
applicants also complained under Article 10 of the Convention about a
violation of their right to freedom of expression. They had only,
albeit in a critical tone, reported on an issue which had dealt with
a matter of general interest.
- Article
10 of the Convention reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicants
- The
applicants maintained that they had not claimed in their article that
X. had committed an offence and, as stated by the District Court, the
information about lacking experience and training had not been
incorrect. The article had not discussed X.'s private life but rather
criticised her work as Child Ombudsman. The magazine had published a
rectification which had stated unequivocally that the information
about X. being sidelined had been incorrect. The applicants had acted
in good faith and their incorrect statement should not be considered
so significant that a restriction on freedom of expression would be
necessary. The Guidelines for Journalists were not intended to be
used as a basis for criminal assessment. On the other hand, Articles
7 and 10 of the Convention as well as Section 8 of the Constitution
of Finland required that the punishability of a deed had to have a
basis in law.
- The
applicants claimed that before writing the article in question, the
first applicant had tried to interview T. by telephone at the
Mannerheim League for Child Welfare but she had not wished to comment
on the matter in detail. Based on the information in the article of
11 December 1996, it had been clear that X. would not continue in her
post as before but would transfer to research work and that she would
not be replaced. The applicants had had reason to believe that these
issues were somehow related.
- The
applicants pointed out that the Government had not put forward any
arguments showing that restrictions on freedom of expression had been
necessary in the present case for a pressing social need or for any
other reason. Neither had the District Court nor the Court of Appeal
taken into account Article 10 of the Convention or considered the
necessity requirement under that Article in their judgments. While it
was true that X. had been publicly criticised in the media over the
years, this could not be attributed to the applicants. Bearing in
mind that the applicants had been obliged to pay not only the fines
but also close to EUR 26,000 in compensation and costs, they
maintained that Article 10 of the Convention had been violated.
(b) The Government
- The
Government conceded that the convictions of the first and second
applicants, as well as ordering all the applicants to pay damages and
costs, had amounted to an interference with the exercise of their
right to freedom of expression under Article 10 of the Convention.
- The
impugned measures had had a basis in Finnish law, especially in
Chapter 27, section 1, of the Penal Code and in Chapter 5, section 6,
of the Tort Liability Act, both provisions fulfilling the
requirements of precision and clarity. The interference had thus been
“prescribed by law” as required by Article 10 § 2 of
the Convention.
- As
to the legitimate aim, the interference had aimed to protect the
reputation and rights of others, namely those of X.
- As
to whether the interference was “necessary in a democratic
society”, the Government pointed out that, according to
national law and the Supreme Court's case-law, anyone publishing a
defamatory allegation had to provide evidence showing that sufficient
grounds existed to support the allegation. Therefore anyone
publishing particularly serious allegations had a special duty to
verify their truthfulness from available sources. As the District
Court and the Court of Appeal had found in their judgments, the
applicants had not verified the information given in the article
although it had been easily verifiable. The article in question had
not completely corresponded to the article of 11 December 1996
published in the tabloid newspaper which had been based on truthful
information. There had been no evidence that X. had not continued her
work as the Child Ombudsman as before, as these functions had been
wound up only in 2003.
- The
Government pointed out that it did not appear from the documents
whether the rectification had been published in its entirety. In any
event, it appeared that X. had not been given a possibility to
comment on the article prior to its publication and that the article
had caused her suffering. Moreover, the factual basis on which the
applicants had relied had not been sufficiently accurate and
reliable. Contrary to what the applicants alleged, the domestic
courts had attached importance to all the relevant facts of the case
and had balanced thoroughly the public interest involved and the
interests of the parties in the light of the Court's case-law.
- As
to the fines imposed, the Government maintained that they had been
moderate. Also the damages and costs and expenses, which the
applicants had been ordered to pay, had been reasonable. The domestic
courts had attached significance to all the relevant circumstances of
the case and the grounds relied on by them had not only been relevant
but also sufficient to justify the interference with the applicants'
right to freedom of expression. Taking into account the margin of
appreciation, the Government maintained that a fair balance had been
struck between the public interest involved and the interests of X.
2. The Court's assessment
1. Whether there was an interference
- The
Court agrees with the parties that the first and second applicants'
conviction, the fines imposed on them and the award of damages
against all the applicants jointly and severally constituted an
interference with their right to freedom of expression, as guaranteed
by Article 10 § 1 of the Convention.
2. Whether it was prescribed by law and
pursued a legitimate aim
- As
to whether the interference was “prescribed by law”, the
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter 27, section 1, of the
Penal Code and Chapter 5, section 6, of the Tort Liability Act.
Moreover, they agree that both provisions fulfilled the requirements
of precision and clarity. The Court concludes therefore that the
interference was “prescribed by law” (see Nikula v.
Finland, no. 31611/96, § 34, ECHR 2002 II;
Selistö v. Finland, no. 56767/00, § 34, 16
November 2004; Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 43, ECHR 2004 X; and
Eerikäinen and Others v. Finland, no.
3514/02, § 58, 10 February 2009). In addition, it has not
been disputed that the interference pursued the legitimate aim of
protecting the reputation or rights of others, within the meaning of
Article 10 § 2.
3. Whether the interference was necessary
in a democratic society
- According
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2 of Article 10 of
the Convention, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2, which must, however, be strictly construed. The
need for any restrictions must be established convincingly (see, for
example, Lingens v. Austria, 8 July 1986, § 41, Series A
no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 43, ECHR 1999-VIII).
- The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
- The
Court's task in exercising its supervision is not to take the place
of national authorities but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant
to their power of appreciation (see, among many other authorities,
Fressoz and Roire v. France [GC], no. 29183/95, § 45,
ECHR 1999-I).
- In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks made by the applicants and the context in
which they made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
(see Sunday Times v. the United Kingdom (no. 1), 26 April
1979, § 62, Series A no. 30; Lingens, cited above, §
40; Barfod v. Denmark, 22 February 1989, § 28,
Series A no. 149; Janowski, cited above, § 30; and News
Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52,
ECHR 2000 I). In doing so, the Court has to satisfy itself that
the national authorities applied standards which were in conformity
with the principles embodied in Article 10 and, moreover, that
they based themselves on an acceptable assessment of the relevant
facts (see Jersild v. Denmark, 23 September 1994, §
31, Series A no. 298).
- The
Court further emphasises the essential function the press fulfils in
a democratic society. Although the press must not overstep certain
bounds, particularly as regards the reputation and rights of others
and the need to prevent the disclosure of confidential information,
its duty is nevertheless to impart – in a manner consistent
with its obligations and responsibilities – information and
ideas on all matters of public interest (see Jersild, cited
above, § 31; De Haes and Gijsels v. Belgium,
24 February 1997, § 37, Reports of Judgments and
Decisions 1997 I; and Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not
only do the media have the task of imparting such information and
ideas: the public also has a right to receive them (see, Sunday Times
v. the United Kingdom (no. 1), cited above, § 65). In
addition, the Court is mindful of the fact that journalistic freedom
also covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, 26 April
1995, § 38, Series A no. 313, and Bladet Tromsø and
Stensaas, loc. cit.).
- Turning to the facts of the present case, the Court
notes that the first and second applicants were convicted on the
basis of the remarks made in an article in their capacity as a
journalist or as editors-in-chief, and were, together with the
applicant company, ordered to pay damages.
- The
Court observes at the outset that the article of 20 December 1996
in Seura magazine stated in the headline that X. who was the
Child Ombudsman in the Mannerheim League for Child Welfare had been
removed from office and in the text, inter alia, that X. had
been transferred to do research work and that she would not be
replaced as Ombudsman. The article also stated that X. had no
training or experience in research work and included her photograph.
- The
Court considers that the impugned article did not concern X.'s
private life but rather her work as Child Ombudsman in the Mannerheim
League for Child Welfare, which is a non-governmental organisation.
X. was neither a civil servant nor a politician and therefore not as
such subject to the wider limits of acceptable criticism. However,
she could not be considered to be a completely private person as, due
to her position, she had been publicly promoting the goals and
objectives of the non-governmental organisation and had therefore
been visible in the media over the years.
- The
Court notes that it was established by the domestic courts that the
impugned article contained both correct and incorrect information,
and that the emphasis had been on the latter. Moreover, the domestic
courts found that the first and second applicants had not verified
the information given in the article although it would have been
easily verifiable from certain sources. The incorrect information had
been rectified in one of the later issues of the magazine.
- The
Court observes that responsible journalism requires checking of
sources from the standpoint of their accuracy in order to prevent
factual errors (see, mutatis mutandis, Rumyana Ivanova
v. Bulgaria, no. 36207/03, § 65, 14 February 2008).
This obligation is highlighted in section 10 of the Guidelines for
Journalists, which have been drafted by media professionals for the
purposes of instilling within the profession a commitment to basic
deontological rules including the pursuit of accuracy in reporting.
While it is true that the applicants may have failed to verify
sufficiently all of the information in the impugned article, the
Court considers, however, that in the present case the applicants can
mainly be blamed for misreporting. Moreover, the Court would observe
that the domestic courts failed to weigh in the balance the competing
interests involved, namely the interests of X. and the rights of the
applicants, with the result that the applicants' right to publish the
incriminated article was never addressed.
- Furthermore,
it appears that no consideration was given by the domestic courts to
the rectification published in one of the later issues of the
magazine. The Court considers that the correction of incorrect
information by means of a timely rectification can be considered an
appropriate form of redress for hurt caused. Nor did the domestic
authorities consider whether other less drastic measures would have
been sufficient to protect the interests involved.
- The
Court can only note in this latter connection the severity of the
penal sanctions imposed on the applicants. It notes that the first
and second applicants were ordered to pay forty day-fines, amounting
to EUR 240 and EUR 2,360 respectively. In addition all the
applicants, together with the applicant company, were ordered to pay
damages jointly and severally in a total amount of approximately
EUR 8,800 (including interest). The severity of the sentence and
the amount of compensation must be regarded as substantial, given
that the maximum compensation afforded to victims of serious violence
was approximately FIM 100,000 (EUR 17,000) at the time (see
paragraph 23 above).
- The
Court would observe in this connection that in view of the margin of
appreciation left to Contracting States a criminal measure as a
response to defamation cannot, as such, be considered
disproportionate to the aim pursued (see Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 59, ECHR 2007-..., Radio France and Others v.
France, no. 53984/00, § 40, ECHR 2004-II and Rumyana
Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February
2008). Nevertheless, when a statement, whether qualified as
defamatory or insulting by the domestic authorities, is made in the
context of a public debate, the bringing of criminal proceedings
against the maker of the statement entails the risk that a prison
sentence might be imposed. In this connection, the Court recalls that
the imposition of a prison sentence for a press offence will be
compatible with journalists' freedom of expression as guaranteed by
Article 10 only in exceptional circumstances, notably where
other fundamental rights have been impaired, as for example, in the
case of hate speech or incitement to violence (see Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 115,
ECHR 2004-XI; and Długołęcki v. Poland, no.
23806/03, § 47, 24 February 2009). For the Court, similar
considerations should apply to insults expressed in connection with a
public debate. The Court would further observe that the Parliamentary
Assembly of the Council of Europe in its Resolution 1577 (2007) urged
those member States which still provide for prison sentences for
defamation, even if they are not actually imposed, to abolish them
without delay (Resolution Towards decriminalisation of defamation
adopted on 4 October 2007).
- The
Court can accept that an action, at least in civil law, may lie
against a journalist who has published incorrect information about a
plaintiff who has suffered pecuniary or non-pecuniary damage as a
result. Even accepting that X. had suffered damage, the Court
considers that such severe penal sanctions as imposed in the present
case together with an obligation to pay damages, viewed against the
circumstances, were disproportionate having regard to the competing
interest of freedom of expression.
- In
conclusion, in the Court's opinion the reasons relied on by the
domestic courts, although relevant, were not sufficient to show that
the interference complained of was “necessary in a democratic
society”. Moreover, the sanctions imposed were
disproportionate. Having regard to all the foregoing factors, and
notwithstanding the margin of appreciation afforded to the State in
this area, the Court considers that the domestic courts failed to
strike a fair balance between the competing interests at stake.
- There
has therefore been a violation of Article 10 of the Convention.
IV. REMAINDER OF THE APPLICATION
- Lastly,
the applicants referred in their application to
Article 7 of the Convention.
- The
Court finds, having regard to the case file, that the matter
complained of does not disclose any appearance of a violation of the
applicants' rights under the Convention (see Selistö v.
Finland, cited above, §§ 31 and 34). Accordingly, this
part of the application is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- All
applicants claimed EUR 28,688.86 in respect of pecuniary damage, and
the first and second applicants claimed EUR 5,000 each in respect of
non-pecuniary damage.
- The
Government pointed out that, in respect of the first and second
applicants, the unilateral declaration should be taken into account.
As to pecuniary damage and the alleged violation concerning the
excessive length of the proceedings, there was no causal link between
the damage suffered and the alleged violation. The Government
contended that, if the Court were to find a violation of Article 10,
the applicants were entitled to compensation for pecuniary damage.
However, it was to be noted that all of the amounts claimed under
this heading had in fact been paid by the applicant company. As to
non-pecuniary damage, the Government referred to its unilateral
declaration and considered that, were the Court to find a violation
of Article 10, no further compensation should be awarded as the
applicants had already been compensated up to the total amount of
their claim.
- As
to pecuniary damage, the Court does not discern any causal link
between the violation of Article 6 of the Convention and the
pecuniary damage alleged; it therefore rejects this claim. On the
other hand, in respect of the violation of Article 10, it finds that
such causal link exists and, consequently, there is justification for
making an award to the applicants under that head. Having regard to
all the circumstances, the Court awards the applicants jointly the
sum claimed in full. As to non-pecuniary damage, the Court notes that
the first and second applicants have already been awarded, in the
Government's unilateral declaration concerning Article 6 of the
Convention, the full sum claimed.
B. Costs and expenses
- The
applicants also claimed EUR 51,785.55 for the costs and expenses
incurred before the domestic courts and EUR 5,402.65 for those
incurred before the Court.
- The
Government left it to the Court's discretion to decide whether the
applicants had submitted adequate documents to support their claims.
In any event, the hourly rates appeared to be very high and certain
expenses, such as those for postage, telephone and copying, should
not be compensated as they had already been included in counsel's
fee. The unilateral declaration should also be taken into account as
reduction. In any event, the Government considered that the
applicants' claims were too high as to quantum and that the
compensation for the costs and expenses incurred before the domestic
courts should not exceed EUR 5,200 (inclusive of value-added tax) and
those incurred before the Court EUR 3,000 (inclusive of value-added
tax).
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicants jointly the sum of
EUR 8,500 (including any value-added tax) under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Takes note of the terms of the respondent
Government's declaration in respect of the first and second
applicants' length of proceedings complaint under Article 6 § 1
of the Convention and of the modalities for ensuring compliance with
the undertakings referred to therein;
2. Decides to strike the application out of its
list of cases in so far as it relates to the above complaint
introduced by the first and second applicants, in accordance with
Article 37 § 1 (c) of the Convention;
- Declares the remaining complaints under Article
6 § 1 of the Convention, as regards the applicant company, and
Article 10 of the Convention, as regards all three applicants,
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the applicant company;
- Holds that there has been a violation of Article
10 of the Convention as regards all three applicants;
6. Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
28,688.86 (twenty-eight thousand six hundred and eighty-eight euros
and eighty-six cents) to the applicants jointly, plus any tax that
may be chargeable, in respect of pecuniary damage;
(ii) EUR
8,500 (eight thousand five hundred euros) to the applicants jointly,
plus any tax that may be chargeable to them, in respect of costs and
expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
