In the case of Erla Hlynsdόttir v. Iceland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
LechGarlicki, President,
David ThórBjörgvinsson,
PäiviHirvelä,
GeorgeNicolaou,
LediBianku,
NebojšaVučinić,
Vincent A.De Gaetano, judges,
andLawrence Early, Section Registrar,
Having deliberated in private on 19 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43380/10) against the Republic of Iceland lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by an Icelandic national, Ms Erla Hlynsdόttir
(“the applicant”), on 21 June 2010.
The applicant was represented by Mr Hreinn Loftsson
and Mr Gunnar Ingi Jóhannsson, both lawyers practising in Reykjavík. The
Icelandic Government (“the Government”) were represented by their Agent,
Mrs Ragnhildur Hjaltadóttir, of the Ministry of Interior.
The applicant alleged a violation of Article 10
of the Convention on account of the unfavourable outcome of defamation
proceedings brought against her by a person who had been portrayed in an
article published by the DV newspaper on 26 February 2009.
On 18 October 2010the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Ms Erla Hlynsdóttir, is an
Icelandic national who was born in 1978 and lives in Reykjavík. She is a
journalist working for the newspaper DV. In February 2009, a Mr A
contacted the applicant about a story which he asked to be published by DV.
According to Mr A’s account Mr B, a person known for being violent and whose
acts of violence had recently been commented on in the press, had attacked him
at his strip club, called Strawberries. He had allegedly done so on the
order of the owner of a rival strip club. The applicant responded that she
would look into the story and would contact Mr B in order to hear his account
and also the owner of the rival strip club. Being dissatisfied with the
applicant’s reply, Mr A insisted that his version of events be published. The
applicant refused to do so and decided to carry out research in relation to Mr
A’s account. She interviewed him and recorded the interview on tape.
On 26 February 2009 DV published a news
report by the applicant entitled “Strip Kings Battle”, on the subject of Mr A’s
accusations against Mr B with regard to the alleged assault at the Strawberriesstrip
club. The article referred to interviews with Mr A, Mr B and Mr Y.
Mr A was reported to have stated that on the
night before 7 February 2009, Mr B had been among the patrons of Strawberries
accompanied by two other men. He left the club in the course of the night, but
returned just before closing time, when he allegedly attacked the employees of
the restaurant. Following this Mr A had tried to show him out. Suddenly Mr B
attacked Mr A and struck him with his fist, as a result of which he sustained a
cracked skull and severe injuries to his eye. Mr A reported the incident to the
police.
Mr B., whose interview with the applicant was
published in the same news coverage, was reported to have denied all the
accusations made by Mr A. According to Mr B, he and his two friends had
been out partying and had decided to visit the Strawberries club. They
had only been there for a short while when Mr A insisted that they leave. As
they refused, the doormen forcibly removed Mr B. In the commotion both he and
Mr A had been injured.
Mr A instituted defamation proceedings against
the applicant before the Reykjavík District Court, arguing that the following
statement made byMr B amounted to unlawful defamation in breach of Articles
234, 235 and/or 236 of thePenal Code and requested that it be declared null and
void (dauð og ómerk)under Article 241(1):
Item 1
“He [the plaintiff] has been spreadingall around town the
rumour that no one with an attitude would come to Strawberries, because
he has the Lithuanian mafia in there, and that I was just taken and beaten up
in there. I don’t really get this. He really needs to make up his mind whether
he thinks I was beaten up or he was.”
He also submitted that the following sub-heading
amounted to unlawful defamation and should be declared null and void:
Item 2
“Rumour about the mafia”
Mr A in addition sought 2,000,000 Icelandic krónur
(ISK) (corresponding approximately to 13,850 euros (EUR) at the time) plus
interest in compensation for damages, an order under Article 241(2) to pay him
ISK 500,000 to cover the costs of publication in the press of the court’s
reasons and conclusion in the defamation case, plus legal costs.
In her pleadings before the District Court, the
applicant prayed in aid the freedom of expression guaranteed under Article 73
of the Icelandic Constitution and Article 10 of the Convention as well as the
Court’s case‑law. She further relied on section 15(2) of the Printing Act
no. 57/1956, according to which the author of a statement was responsible
for the publication of its content. The article had indicated the identity of
the author of the disputed statements and the transcripts of the interview had
shown that they had been quoted from their named author, Mr B. Accordingly the
applicant could not be regarded as the author of the allegations. In so far as
the sub-heading was concerned, she pointed out that this had only paraphrased
Mr B’s remarks.
The applicant further disputed that item 1 was
defamatory.The first part of that remark had consisted of Mr B’s account
that the plaintiff had himself spread the rumour that no one came to the Strawberries
club with an attitude, because the Lithuanian mafia was present there. Mr B’s
remark did not amount to an allegation that the Lithuanian mafia was present at
Strawberries, but that Mr A wanted the rumour to be spread. In fact, it
was clear from the interview that those interviewed by the applicant thought
that no Lithuanians went to the club but that this was a false rumour that the
plaintiff wanted to have spread around town. When considering the remark in its
true context, it was clear that in no way did it contain Mr B’s claim that the
plaintiff was involved in criminal conduct. Whatever could be said about mafia
operations, the remark contained no allegation regarding the plaintiff’s
activities that could be singled out as mafia related, i.e. criminal conduct.
The main point was whether the plaintiff had been accused of such conduct. This
had clearly not been the case. Accordingly, there was no basis for considering
that the remarks were covered by the provisions in the Penal Code on protection
of reputation. Moreover, the word “mafia” had no defined meaning in the
Icelandic language.
As regards the second part of the remark, Mr B
had stated that Mr A was spreading the rumour that Mr B had been taken and
beaten up inside Strawberries. As could be gathered from the interview
and the remark itself, it was nowhere stated that the plaintiff had beaten up
Mr B or anyone else. However, the interview and the above-mentioned remark
stated that the plaintiff had mentioned in many places the story that Mr B had
been beaten up inside the club. That statement was true, as Mr B had been in a
fight inside the club and the plaintiff had taken the initiative to contact DV
and had provided information regarding that incident.
Finally, the applicant stressed that the whole
dispute had originated in Mr A’s own initiative to have the story published. It
would have been reasonable for him to expect that the journalist would seek to
provide information about both versions of the events and that the person
against whom he had levelled serious accusations would have a different
version.
By a judgment of 21 December 2009 the District
Court found for the plaintiff Mr A and against the applicant, giving the
following reasons.
“The defendant bases her claim for acquittal mainly on lack of
involvement, as the remarks have been quoted word for word from their named
author, [Mr B].
The defendant admitted in court to have written the said
article and stated that she believed she had been the author of the disputed
sub-heading.
According to an audio recording of the [applicant’s] interview
with [Mr B], the disputed statement made by [Mr B] went as follows: ‘He has
been spreading rumours all around town about it. That no-one really enters Strawberries
with an attitude you see. ‘Cause he has the Lithuanian mafia and I was just
taken and beaten up in there, you know.’ A slight change in wording has been
made in the [applicant’s] article, not affecting the contents and only
involving removing the emphasising words you see and you know. The remark was
published within quotation marks in the paper.
Having regard to the Supreme Court’s judgment in case No.
328/2008, the [applicant] is found to be the article’s and sub-heading’s author
for the purposes of section 15(2) of the Printing Act No. 57/1956, regardless
of whether Mr B can also be found to be the author of the remarks quoted
verbatim after him, and the [applicant] is responsible for remarks presented
there, as well as sub-headings.
It is clear that the interview with the plaintiff, [Mr A],
whether he initiated it or not, had been taken with his consent and wishes,
even though he was dissatisfied with the article when it was published in the paper,
where also the opinions expressed by other persons in interviews conducted by
the [applicant] had been published. In her interview with the plaintiff he had
accused [Mr B] of various matters. It ought to have been clear to him that his
remarks would be shownto the person concerned and that this person would be
given an opportunity to state his version of events. The words that the
article’s author had quoted directly from [Mr B], which had been the cause for
the plaintiff’s action, are intended to give the article’s readers the
impression that the plaintiff is in charge of an organised, international
criminal organisation. The journalist has not demonstrated or sought toascertain
that the allegation, which rendered [Mr B]’s words, is true. The allegation
contained a defamatory innuendo, see Article 235 of the Penal Code, and
should, in accordance with the plaintiff’s claim, be declared null and void, as
should the sub-heading ‘Rumour about the mafia’, which referred to the remark.
By virtue of the statements declared null and void the
[applicant] has unlawfully injured the plaintiff’s honour. She is therefore
obliged to pay him damages in accordance with section 26 (1) of the Damage
Compensation Act No. 50/1993. In the present case the amount of ISK 200,000
[approximately EUR 1,100 at the time] is deemed a reasonable level of
compensation. ...
With reference to Article 239 of Act No. 19/1940 the
plaintiff’s request that the [applicant] be punished for the statements is
rejected.
The plaintiff is found to be entitled to the reimbursement of
expenses incurred for the publication of the motives and conclusions of the
judgment, as he requested under Article 241(2) of the Penal Code. The plaintiff
has not presented any particulars in support of his claim as to the size of the
amount requested nor supported it with any arguments. This item will therefore
be determined on the basis of the court’s own assessment and the amount of ISK
150,000 is considered reasonable.
In light of the foregoing, the [applicant] is required to pay
the plaintiff’s legal costs, which it is considered reasonable to assess at ISK
350,000 (inclusive of VAT).”
The applicant sought to appeal to the Icelandic
Supreme Court but on 25 March 2010 the latter refused her leave to appeal.
This was on the ground that the financial value of what was at stake in the
appeal (legal costs not being relevant) did not reach the statutory minimum
level for grant of leave to appeal and that there were no special circumstances
warranting an exception being made to this requirement in the applicant’s case.
II. RELEVANT DOMESTIC LAW
Article 73 of the Constitution of the Republic of Iceland, Act No. 33/1944 read:
Article 73
“Everyone has the right to freedom of opinion and belief.
Everyone shall be free to express his thoughts, but shall also
be liable to answer for them in court. The law may never provide for censorship
or other similar limitations to freedom of expression.
Freedom of expression may only be restricted by law in the
interests of public order or the security of the State, for the protection of
health or morals, or for the protection of the rights or reputation of others,
if such restrictions are deemed necessary and in agreement with democratic
traditions.”
The Penal Code No. 19/1940 contained in Chapter
XXV, entitled “Defamation of character and violations of privacy’, the
following relevant provisions:
Article 234
“Any person who harms the reputation of another person by an
insult in words or in deed, and any person spreading such insults shall be
subject to fines or to imprisonment of up to one year.”
Article
235
“If a person alleges against
another person anything that might be harmful to his or her honour or spreads
such allegations, he shall be subject to fines or to imprisonment of up to one
years.”
Article
236
“The making or spreading of an injurious allegation against a
person’s better knowledge, this shall be subject to up to 2 years imprisonment.
If an allegation is published or spread in a public manner,
even where the person spreading the allegation did not have a probable reason
to believe it to be correct, this shall be subject to fines or up to 2 years’
imprisonment.”
Article 241
“In a defamation action, defamatory remarks may be declared
null and void at the demand of the injured party.
A person who is found guilty of a defamatory allegation may be
ordered to pay to the injured person, on the latter’s demand, a reasonable
amount to cover the cost of the publication of a judgment, its main contents or
reasoning, as circumstances may warrant in one or more public newspapers or
publications.”
Section 26(1) of the Tort Liability Act No.
50/1993 provided:
“A person who
a. deliberately or through gross negligence causes physical
injury or
b. is responsible for an unlawful injury against the freedom,
peace, honour or person of another party
may be ordered to pay non-pecuniary damages to the injured
party.”
The Printing Act No. 57/1956,Chapter V on the liability
for the contents of publications, containedthe following relevant provisions.
Section 13
“Any person who publishes, distributes, or is involved in the
publishing or distribution, of any publication other than a newspaper or
periodical shall bear criminal liability and liability for damages pursuant to
the general rules of law if the substance of the publication violates the law.”
Section 15
“As regards liability for newspapers or magazines other than
those listed in section 14, the following rules shall apply:
The author is subject to criminal liability and liability for
damages if he or she is identified and either resident in Iceland when the publication is published or within Icelandic jurisdiction at the time
proceedings are initiated.
If no such author is identified, the publisher or editor are
liable, thereafter the party selling or distributing the publication, and
finally the party responsible for its printing or lettering.”
The Code of Ethics of the Icelandic Journalists
Association included the following provisions:
Article 1
“A journalist will endeavour to do nothing which will bring
discredit upon his or her profession or professional association, paper or
newsroom. A journalist shall avoid any actions which could undermine the public
opinion of journalists’ work or damage the interests of the profession. A
journalist shall always exhibit fairness in dealings with colleagues.”
Article 2
“A journalist is aware of his or her personal responsibility
for what he or she writes. He or she shall bear in mind that he or she will
generally be regarded as a journalist in his or her writings and speech, even
when he or she is acting outside his or her profession. A journalist will
respect the confidentiality of his or her sources.”
Article 3
“A journalist will exercise care in his or her gathering of
material, the use of the material and presentation to the extent possible, and
show due consideration in sensitive matters. A journalist shall avoid any
actions which could cause unnecessary distress or dishonour.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicant complainedthat the District
Court’s judgment of 21 December 2009, in respect of which leave to appeal
was refused by the Supreme Court on 25 March 2010, entailed an interference
with her right to freedom of expression that was not “necessary in a democratic
society” and thus violated Article 10 of the Convention, which reads:
“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 finds that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court considers
that the impugned measure constituted an “interference by [a] public authority”
with the applicant’s right to freedom of expression as guaranteed under the
first paragraph of Article 10.
That interference had
a legal basis in Articles 235 and 241(1) of the Penal Code, section 15(2) of
the Printing Act and section 26(1) of the Tort Liability Act, and was in this
sense “prescribed by law” for the purposes of the second paragraph of Article
10.
In this connection the Court observes that, in
the course of the proceedings before it, the applicant in addition maintained
with reference to the above-mentioned criterion – “prescribed by law” – that,
by having held her responsible for the impugned statements as an “author” under
section 15(2) of the Printing Act, the District Court had applied national law
in a manner that had not been foreseeable. In other words, whilst she did not
argue that the interference had lacked a legal basis in Icelandic law, she
disputed the quality of the law with reference to the requirement of
foreseeability stemming from the Court’s autonomous interpretation of the
lawfulness requirement in its case-law. However, the Court does not find it
necessary to pronounce on this issue which appears to concern a separate matter
raised by the applicant for the first time in her observations of 13 April
2011 in reply to those of the Government of 16 February 2011.
The Court is further
satisfied that the interference pursued the legitimate aim of protecting “the
reputation or rights of others”.
It remains to
consider whether the interference was “necessary in a democratic society”.
1. Arguments of the parties
(a) The applicant
The applicantdisputed
the view that the impugned remarks could be interpreted as
containinganallegation that Mr A was in charge of an international criminal
organisation. The District Court had not heldthat the remarks constituted
statements of fact but had merely concluded that they could be perceived by
readers as an allegation that Mr A was the head of an international criminal
organisation.
Neither the
applicant nor the other person interviewed had been of the view or attempted to
argue that Mr A was the head of the Lithuanian Mafia in Iceland. In fact, Mr A, an Icelandic national, had notbeen referred to in the disputed
article as anything but the owner of theclub Strawberries. The alleged
false rumour which Mr A was claimed to be spreading, namely that members of the
Lithuanian mafia frequented his night club, contained no allegationof fact to
the effect that he was the leader of that organisation. It was not established,
nor even known, whether any member of the Lithuanian mafia, if such an
organisation existed, had been present or had ever visited Iceland.
By having been
required to adducesolid evidence as proof of the statements in question, the
applicant had been faced with an unreasonable, if not an impossible, task (Thorgeir
Thorgeirson v. Iceland, 25 June 1992, § 65, Series A no. 239).
The applicant strongly disagreed with the
Government’s argument that the remarks were not a necessary contribution to a
public debate on a social issue. The operation of strip clubs hadlong been
thesubject of public debate and whether such establishments should be permitted
was considered an important social issue in Iceland. According to official
reports, because of the criminal activities associated with these clubs, the
Icelandic police had been against their existence. On one occasion the police
had raided the Strawberries night club, ran by Mr A, and had shut it
down temporarily. Eventually, after a lengthypublic debate, including in
Parliament,night clubs offering strip dancing werebanned in Iceland.
The applicant’s article had contributed to this
debate. As evidencedby various materialssubmitted in support of her
application, there had been frequent clashes between rival strip club owners.
Mr A claimed in an earlier interview with the same newspaper that he had been
beaten up with a baseball bat and blamed his rival competitor for having
organised the attack. On one occasion there had been a struggle between the
two, during which gun shots had been fired. In the article in question, Mr Ahad
blamed his rival competitor for sending Mr B, “a well-known felon who had been
convicted many times for random violent acts”, together with two other persons
to cause trouble. Thishad ended in a fight. The ongoing battle between these
two figures had been the main story in the applicant’s article. In response
toMr A’s verbal attacks, MrB had recounted his version of the story. The
applicant was of the opinion that the content of the interview concerned a
subject of public debate that was of serious public concern.
Likewise, whether the Lithuanian mafia
hadestablished itself in the country was an issue of great importancewhich
should be open to free discussion.
Her journalistic reporting had been based on a
reliable source, namely a first hand witness account, and both parties had been
interviewed. There was no indication that the applicant had acted in bad faith
against Mr A or in breach of the ethics of journalism. Nor had the
statements been excessive or misleading. The case had not been brought before
the Ethics Committee of the Icelandic Press Association (“IPA”). In fact, the
IPA had openly expressed its objections to the conviction of journalists for
publishing statements made by others, especially matters of public interest.
The applicant stressed that the interview had been a part of an on-going public
debate in society, namely whether to allow the operation of strip clubs. Mr
Ahad been given a chance to comment on the article; he did so and made
accusations against Mr B, who replied to his comments.
The applicant, relying on Selistö v. Finland
(no. 56767/00, 16 November 2004), invited the Court to consider whether Mr
A, who had a highly controversial reputation and who owned and ran a highly
controversial business, had such undoubted interest in protecting his
reputation as could outweigh the interest in discussion on an important matter
of legitimate public concern.
By holding her liable for defamation of Mr A
simply on the grounds that some readers of the newspaper might have
understoodMr B’s statements to meanMr A was the head of the Lithuanian mafia
and that the applicant could not provide evidence to substantiate that
allegation, she was deprived of her right as a person and a journalist to
disseminate important information of public concern. The District Court’s judgment
entailed a violation of her right to freedom of expression and journalistic
freedom under Article 10 of the Convention.
Mr A’s sole purpose in lodging defamation proceedings
against her had been to drag her into a costly trial and to send a message to
the media to stop publishing information about strip clubs. Despite having been
aware that the interview had been recorded on tape, he had deliberately opted not
to pursue his defamationactionagainst the person,Mr B,who had made the
statements.Mr A’s attorney had even requested and received a copy of the
recording before initiating the legal proceedings against the applicant.
(b) The Government
The Government emphasised at the outset that in
their interpretation of Article 73 of the Icelandic Constitution, the Icelandic
courts had traditionally relied heavily on standards similar to those applied
by the European Court in interpreting Article 10 of the Convention and had also
considered such factors in their examination of the present case.
The Government pointed out that, as could be
seen from the District Court’s judgment, the remarks which were found to violateMr
A’s rights were deemed to constitute statements of fact rather than value judgments.
This approach was fully consistent with the European Court’s case-law.
Since the allegations that Mr A wasengaged in
criminal activitieshad been presented as facts, the Icelandic courts enjoyed a
greater margin of appreciation in restricting her freedom of expression than would
have been the case had the statements consisted of value judgments.
The Government pointed out that the
subject-matter of the article authored by the applicant had not related to an
important social issue where free public discussion was of great consequence.
The false allegations that Mr A engaged in criminal activities had not been
linked toor been made in the context of anongoing public discussion on a matter
of public interest. Notwithstanding the applicant’s attempt to place her
articles in the context of discussions on strip dancing clubs and that the
owners of such clubs were engaged in an internal feud, the Government rejected
the contention that false statements and personal allegations against Mr A
regarding participation in organised crime conveyed any message of public
concern.
It should also be stressed that Mr A was not in
a position where he might expect to endure harsher criticism or allegations in
connection with a public debate over social issues. He did not engage in
politics nor did he hold public office. Neither could he be considered to be a
public person or well known in Icelandic society. Moreover, the nature of his
restaurantbusiness was not such that he should be subjected to harsher public
condemnation than anyother person.
The Government did not disagree that issues
related to criminal activities and to possible links between night clubs,
prostitution and even human trafficking were matters of serious public concern,
However, the ongoing debate in Icelandic society on such matters did not
justify that every person who was legally running a night club ought to
tolerate the publication of erroneousallegations that he or she wasinvolvedin
crime of any kind without a factual basis. It had not been revealed that Mr A
or his club had been under police investigation for criminal activities such as
prostitution, organised crime or other related crimes. He should be afforded
the same protection of his private life as other private individuals.
The Government objected strongly to the
applicant’s argument that since in her view Mr A was already a highly
controversial character with ties to various controversial people, she enjoyed
a wider freedom as a journalist in publishing statements concerning his guilt
than in the case of other private individuals. No principles of that kind could
be deduced from theCourt’s case-law. Nor did “highly controversial characters” correspond
to any category of individuals created by the media itself for whom private
life and reputation deserved less protection againstviolations by the media.
The applicant’s attitude towards Mr Amade it
seem doubtful that she had acted in good faith and as a responsible journalist,
since in her view the statements aboutMr Athat she had obtained from Mr B
needed no further investigation or confirmation by other sources. Nor was Mr A
offered an opportunity to comment on the allegations.
The Government did not argue that the applicant
should be required to provide proof beyond reasonable doubt to confirmthat Mr A
participated in the criminal activity in question. However, the statements had
been published without necessary attempts to verify them or to ascertain
whether they had a factual basis.
Praying in aid the Court’s judgment in Ruokanen
and Others v. Finland (no. 45130/06,
§ 48, 6 April 2010), the Government maintained that Mr Ashould benefit from the
presumption of innocence under Article 6 § 2 of the Convention.
The Government further submitted that the
applicant had failed to abide by the journalistic duties identified by the
Court in its case-law and that in the circumstances there had indeed been
carelessness on her part. She had been unable to verify, or provide evidence
for, the false allegations contained in the remarks aimed at Mr A. When it
became apparent that she could not find a factual basis for Mr B’s allegations
against Mr A, she should have arranged the presentation of Mr Bremarks
accordingly. The Government also referred to Article 3 of the Code of Ethics of
the Icelandic Journalists Association (see paragraph 22 above).
If it were accepted that a journalist could be
released from the obligation to verify statements made by his or her sources
simply by publishing them as direct quotes, this would undermine the important
principle that journalists should exercise care in the gathering, use and
presentation of material.
The Government therefore disputed the
applicant’s argument that it would undermine the independence of the media if
they could be held liable for quoting remarks made by third parties. It was
indeed the role, as well as the right, of the media to disseminate information
and personal opinions. However, this was subject to the condition that the use,
presentation and context in which such information was published met the
requirements of responsible journalism. The applicant in the present case
failed to meet these requirements.
In the Government’s opinion, the impugned
restriction on theapplicant’s exercise of freedom of expression in this case
had corresponded to a pressing social need and had been justified by relevant
and sufficient reasons. Since she had publicised false allegations that Mr A
had participated in serious criminal activities,important individual rights to
personal privacy, honour and reputation were at stake. The respondent State’s
positive obligation to protect these individual rights by law had constituted
an important public interest for the national courts when striking, within
their margin of appreciation, a fair balance between the competing interests.
Finally, it should be stressed that the measures
were proportionate to the legitimate aim pursued. The amounts of compensation
that the applicant was ordered to pay were fully consistent with settled
national judicial practice. In no way were they particularly onerous for her.
2. Assessment by the Court
(a) General principles
In the judgment of Pedersen and Baadsgaard v.
Denmark [GC], no. 49017/99, ECHR 2004‑XI, the Court summarised
the general principles in its case-law as follows:
“68 The test of “necessity in a democratic society”
requires the Court to determine whether the interference complained of
corresponded to 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 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, among
many other authorities, Perna v. Italy [GC],no. 48898/99, § 39, ECHR
2003-V, andAssociation Ekin v. France, no. 39288/98, § 56, ECHR
2001-VIII).
69. The Court’s task in exercising its supervisory
function is not to take the place of the competent domestic courts but rather
to review under Article 10 the decisions they have taken pursuant to their
power of appreciation (see Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is
limited to ascertaining whether the respondent State exercised its discretion
reasonably, carefully or in good faith; what the Court has to do is to look at
the interference complained of in the light of the case as a whole, including
the content of the comments held against the applicants and the context in
which they made them(see News Verlags GmbH & Co. KG v. Austria,
no. 31457/96, § 52, ECHR 2000-I).
70 In particular, the Court must determine whether
the reasons adduced by the national authorities to justify the interference
were ‘relevant and sufficient’ and whether the measure taken was‘proportionate
to the legitimate aims pursued’ (see Chauvy and Others v. France, no.
64915/01, § 70, ECHR 2004-VI). In doing so, the Court has to satisfy itself
that the national authorities,basing themselves on an acceptable assessment of
the relevant facts, applied standards which were in conformity with the
principles embodied in Article10 (see, among many other authorities, Zana v.
Turkey,judgment of 25 November 1997, Reports 1997-VII,
pp. 2547-48, § 51).”
Moreover, as also affirmed in the above-cited Pedersen
and Baadsgaard (ibidem, § 71), freedom of expression 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. As set forth in Article 10, this freedom is subject to
exceptions, which must, however, be construed strictly, and the need for any
restrictions must be established convincingly (see, among other authorities, Jersild
v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23-24,
§ 31; Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I; and Nilsen
and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999‑VIII);
Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 45, ECHR 2007‑IV).
In its recent Grand Chamber judgment in Axel
Springer AG v. Germany ([GC], no. 39954/08, § 83, 7 February 2012), the Court reiterated that the
right to protection of reputation is a right which is protected by Article 8 of
the Convention as part of the right to respect for private life (see Chauvy
and Others v. France, no. 64915/01, § 70, ECHR 2004‑VI; Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, §91, ECHR 2004‑XI; Pfeifer
v. Austria, no. 12556/03, § 35, 15 November 2007; andPolanco Torres and
Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September
2010). However, as the Court also pointed out in that judgment, in order
for Article 8 to come into play, an attack on a person’s reputation must attain
a certain level of seriousness and in a manner causing prejudice to personal
enjoyment of the right to respect for private life (see also A. v. Norway,
no. 28070/06, § 64, 9 April 2009;and Sidabras
and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004‑VIII).
A central factor for the Court’s determination
in the present case is the essential function the press fulfils in a democratic
society. Although the press must not overstep certain bounds, in particular in
respect of 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. Not only does the press have the task of
imparting such information and ideas: the public also has a right to receive
them. In addition, the Court is mindful of the fact that journalistic freedom
also covers possible recourse to a degree of exaggeration, or even provocation.
In cases such as the present one the national margin of appreciation is
circumscribed by the interest of democratic society in enabling the press to
exercise its vital role of “public watchdog” in imparting information of
serious public concern (see Bladet Tromsø and Stensaas v. Norway[GC], no. 21980/93, §§59 and 62, ECHR 1999‑III; Tønsbergs Blad A.S. and
Haukom v. Norway, no. 510/04, § 82, 1 March 2007, with further references).
(b) Application of those principles to the present
case
The Court observes from the outset that the
defamation in respect of which the applicant was held liable, was based on Mr
B’s account and the sub-heading under items 1 and 2, respectively:
Item 1
“He [the plaintiff] has been spreadingall around town the
rumour that no one with an attitude would come to Strawberries, because
he has the Lithuanian mafia in there, and that I was just taken and beaten up
in there. I don’t really get this. He really needs to make up his mind whether
he thinks I was beaten up or he was.”
Item 2
“Rumour about the mafia”
In its judgment of 21 December 2009, the
District Court found that the above statements would give readers of the
article the impression that Mr A was “in charge of an organised, international
criminal organisation.” Since the applicant had not demonstrated or sought to
ascertain the truth of this allegation – an innuendo –, she was found
liable under Article 235 of the Penal Code and the statement was declared null
and void (Article 241), as was item 2 which referred to it. On 25 March 2010
the Supreme Court refused the applicant leave to appeal against the District
Court’s judgment.
The Court observes that the above-mentioned
meaning of the defamatory statement was one derived by the District Court, not
from the express terms but, so it appears, from the general tenor of the
statements. However, in the Court’s view it is not clear that these had as
their common sting (see Bergens Tidende and Others v. Norway, no. 26132/95, § 56, ECHR 2000‑IV) a suggestion that Mr A was “in charge
of ...an international crime organisation”. The words “he has the Lithuanian
mafia in there” might very well be understood as meaning that persons so
described were present on the premises of the club. The District Court did not
in its judgment explain how the words used in the article, notably “the
Lithuanian mafia”, could have conveyed to the reader that an “international
criminal organisation” was being referred to. Nor did it explain how the
statements would be perceived by the ordinary reader as an allegation that Mr A
was “in charge” of an “international criminal organisation”, let alone his
involvement withsomething described as “Lithuanian mafia”. In the absence of
any such explanations, the District Court’s analysisof the contents of the
defamation appears unconvincing and gives reason to doubt whether the reasons
it relied on were relevant to the legitimate aim of protecting the rights and
reputation of Mr A.
In any event, even assuming that there existed
reasons that were relevant for the above-mentioned purposes, the Court, having
regard to the considerations relied on in paragraphs 69 to 71 of its judgment
in Björk Eiðsdόttir v. Iceland (no. 46443/09, delivered
simultaneously with the present judgment),is not convinced that they were also
sufficient.
The Court is not persuaded by the Government’s
argument that the “subject-matter” of the applicant’s article and the impugned
statements did not concern an important social issue and did not represent a
necessary contribution to any ongoing public debate. Whether or not a
publication concerns an issue of public concern should depend on a broader assessment
of the subject matter and the context of the publication (Tønsbergs Blad
A.S. and Haukom v. Norway, no. 510/04, § 87, 1 March 2007). In the Court’s
view, the article was aimed at shedding light on the occurrence of violent
clashes between rival strip clubs ownersand must be seen in the wider context
of the public debate in Icelandic print and televised media on the tightening
of strip club regulations or the banning of such clubs altogether, a debate
which by the time of the publication of the applicant’s article had been going
on for quite some time (seeBjörk Eiðsdόttir, cited above,§§ 6 to 10
and 64). There can be no doubt that the applicant’s article,seen as a whole,was
related to a wider issueof legitimate public interest in Iceland.However, it does not transpire from the District Court’s reasoning that this
consideration carried any weight in or was relevant to its assessment.
The Court considers that, by having engaged in
the particular kind of business in question and bearing in mind also the
legitimate public concern highlighted in paragraph 67 above, Mr A must be
considered to have inevitably and knowingly entered the public domain and lain
himself open to close scrutiny of his acts. The limits of acceptable criticism
must accordingly be wider than in the case of a private individual or an
ordinary professional (see, mutatis mutandis, Steel and Morris
v. the United Kingdom, no. 68416/01, § 94,
ECHR 2005‑II; Timpul Info‑Magazin and
Anghelv. Moldova, no. 42864/05, § 34, 27 November 2007).
Nor did the District Court pronounce any view on
whether the impugned innuendo constituted a factual allegation or a
value judgment, beyond holding that the applicant journalist had “not
demonstrated or sought to ascertain that the allegation, which rendered Mr B’s
words, [was] true”. Whilst in the Court’s view this ought to be considered a
factual allegation, the various statements from which the District Court had
derived the contestedinnuendo, consistedin part of Mr B’s opinions or
value-judgments (“spreading all around town the rumour that no one with an
attitude would come to Strawberries, because....”; “He really needs to make up
his mind whether he thinks I was beaten up or he was”;),and in part of
statements of fact (“he has the Lithuanian mafia in there, and ... I was just
taken and beaten up in there”, “Rumours about the mafia”).Thelatter were somewhat
vague (see for instance the observations at paragraph 59 above) and could to
some extent be said to include an element of personal opinion. In the
particular circumstances of the present case, the Court considers that, even if
understood in a narrowerliteral sense only, the statements were such as to
becapable of causing injury toMr A’s personal honour and reputation.
On the other hand, it is not contended that the
disputed statements originated from the applicant herself but from another
named individual, Mr B (compare Ruokanen, cited above, § 47), whom
the applicant had interviewed after having heard Mr A’s version of the violent
incident. As it appears from the District Court’s findings, leaving aside some
slight editing, the quotes under item 1 had consisted of a verbatim rendering
of Mr B’s statements made in the interview. The District Court does not seem to
have considered item 2 differently from the afore-mentioned quotes (see
paragraph 16 above). The Court discerns no reason for doing so either, finding
it sufficiently clear that the sub-heading merely reproduced Mr B’s account and
opinions (see Thoma v. Luxembourg, no. 38432/97, § 64, ECHR 2001‑III;
compareVerdens Gang and Aase v. Norway(dec.), no. 45710/99, ECHR
2001‑X).
In so far as there may have been a legitimate
interest in protecting Mr Aagainst the impugned defamation made by Mr B in his
interview, that interest was in the Court’s view largely preserved by the
possibility open to the former under Icelandic law to lodge defamation
proceedings against the latter (see, mutatis mutandis, Jersild,
cited above, § 35). The Court regards it as significant that Mr Aopted to
institute libel proceedings against the applicant journalist only. It cannot
but note that this had the effect of reducing considerably any possibility for
the applicant to substantiate the allegations.
In this context, the Court will also have regard
to the role of the injured party in the present case (see Nilsen and Johnsen,
cited above, § 52‑53; Oberschlick v. Austria (no. 2), 1 July
1997, §§ 31-35, Reports of Judgments and Decisions 1997‑IV). Itcannot
but note that what had prompted the applicant to write the article had been
that Mr A, the person considered the victim of the accusations, had contacted
the applicant in the first place asking that DV publish his own account
of the relevant violent incident at Strawberries. That account, which
the applicant accepted to render in her article, contained serious accusations
levelled against Mr Y, the owner of the rival club Goldfinger, and Mr B,
the person whom Mr A claimed was known for being violent and, sent by
Mr Y, had attacked him at his club. In the District Court’s reasoning, it
ought to have been clear to Mr A that his remarks would be shown to Mr B and
that he would be given an opportunity to state his version of events. Whilst
the District Court does not appear to have drawn any consequences from this
state of affairs, the Court for its part attaches importance to this factor. By
the manner in which he chose toexpress himself publicly, Mr A had knowingly exposed
himself to criticism and should therefore display a greater degree of tolerance
in this respect (Nilsen and Johnsen, cited above, § 52).
Moreover, by reproducing not only Mr B and Mr
Y’s versions of events but also that of Mr A, the applicant must be considered
to have sought to achieve a balance in her reporting. It should be recalled
that the methods of objective and balanced reporting may vary considerably,
depending among other things on the medium in question; it is not for the
Court, any more than it is for the national courts, to substitute its own views
for those of the press as to what techniques of reporting should be adopted by
journalists (see Jersild, cited above, pp. 23-25, §§ 31 and 34, and
Bergens Tidende and Others, cited above, § 57). Though they may have
been capable of causing injury to Mr A’s reputation,the Court sees no cause for
criticising the applicant for not having distanced herself from the contents of
Mr B’s statements (Thoma, cited above, § 64; Standard Verlags GmbH v.
Austria, no. 13071/03, § 53, 2 November 2006).
In this connection, the Court reiterates that
news reporting based on interviews, whether edited or not, constitutes one of
the most important means whereby the press is able to play its vital role of
"public watchdog" (see Observer and Guardian v. the United
Kingdom, 26 November 1991, § 59, Series A no. 216; and Jersild,
cited above, § 35). Moreover, the punishment of a journalist for assisting in
the dissemination of statements made by another person in an interview would
seriously hamper the contribution of the press to discussion of matters of
public interest and should not be envisaged unless there are particularly
strong reasons for doing so (see Jersild, cited above, ibidem). However,
whilst this consideration was apparently insignificant for the District Court’s
assessment, the Court is not convinced that there were any such strong reasons
in the instant case.
Having regard to all of the above considerations,
notably the lacunae in the District Court’s analysis of the impugned statements,
that the latter had been given by another person in an interview with the
applicant and the particular role of the injured party,the Court finds in the
concrete circumstances of the present case that the applicant journalist cannot
be criticised for having failed to ascertain the truth of the disputed
allegations and is satisfied that she acted in good faith, consistently with
the diligence expected of a responsible journalist reporting on a matter of
public interest (see, for instance, Wizerkaniuk v. Poland, no. 18990/05, § 87, 5 July 2011).
Nonetheless, the defamation proceedings brought
by Mr A against the applicant ended in an order by the District Court declaring
the statements null and void and requiring the applicant to pay to Mr
Aaltogether ISK 700,000 (approximately EUR 3,920at the time). This included ISK
200,000 in compensation for non-pecuniary damage, ISK 150,000 to cover the
costs of the publication in the press of the reasons and conclusions of the
District Court’s judgment and ISK 350,000 for his costs before the District
Court.
Accordingly, the reasons relied on by the
respondent State, even assuming that they wererelevant, are not sufficient to
show that the interference complained of was “necessary in a democratic
society”. The Court considers that there was no reasonable relationship of
proportionality between the measures applied by the District Court on the
applicant’s right to freedom of expression and the legitimate aim pursued.
There has accordingly been a violation of Article 10 of the
Convention.
II. 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. Pecuniary damage
The applicant sought compensation for pecuniary
damage in respect of amounts totalling 700,000Icelandic krónur (ISK)
that she had been ordered by the District Court, in its judgment of 21 December
2009, to pay to Mr Afor non-pecuniary damage (ISK 200,000), for the publication
of the reasons and operative part of the District Court’s judgment (ISK
150,000) and for legal costs (ISK 350,000).
The Government objected to the reimbursement of
any of the above amounts which she did not appear to have paid yet.
The Court observes that the effect of the
present judgment does not automatically lead to the quashing of the District
Court’s order that the applicant pay Mr A the above-mentioned amounts.
Moreover, according to material submitted to it, Mr A has no intention of
waiving his claim against her.Being satisfied that there was a causal link
between the violation found and the pecuniary damage alleged, it awards the
applicant 4,000euros (EUR)under this heading.
B. Non-pecuniary damage
The applicant further claimed ISK
5,500,000(corresponding as of 13 April 2011 to approximately to EUR
33,700) in compensation for non‑pecuniary damage that she had suffered as
a result of the violation of the Convention entailed by the District Court’s
judgment of 9 December 2009. The proceedings against her had subjected her to a
heavy burden as a journalist living on a modest income. After the said judgment
it had become a habit to refer to her as “the convicted journalist”. Her honour
and reputation, both on a personal and on a professional level, had suffered.
The matter had caused the applicant and her family emotional and psychological
pain and suffering. The District Court’s judgment, which stated her name, had
been made accessible to the public at large through publication on internet.
The Government disputed the above claim,
considering that a finding of violation by the Court would constitute adequate
just satisfaction. In any event, should the Court be minded to make a pecuniary
award, the amount requested was clearly excessive. EUR 2,000 would be a more
appropriate sum in light of the Court’s case-law in similar cases.
The Court accepts that the applicant suffered
distress and frustration as a result of the violation of the Convention which
cannot be adequately compensated by the findings in this respect. Making an
assessment on an equitable basis, the Court awards the applicant EUR 5,000
under this head.
C. Costs and expenses
The applicant further sought the reimbursement
of legal costs and expenses, totalling ISK 3,057,490 (corresponding to
approximately EUR 18,000), in respect of the following items:
(a) ISK 1,057,490(approximately EUR 5,750) incurred
for her own legal costs before the domestic courts (ISK 952,425 before the
District Court and ISK 105,065in seeking to obtain leave to appeal to the
Supreme Court);
(b) ISK 2,000,000 (approximately EUR 12,250) for her
lawyers’ work in the proceedings before the Court.
The above amounts included value added tax (“VAT”).
The Government considered item (a) unreasonably
high and invited the Court to determine a realistic amount for fees, whilst
pointing out that no particulars had been submitted to show that the applicant
had paid the costs in question. Item (b) was in their opinion excessive and
they requested the Court to determine what would constitute a reasonable
amount.
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 are
reasonable as to quantum. In the present case, regard being had to the above
criteria, documents in its possession and the fact that only parts of the
claims for costs were supported by vouchers, the Court considers it reasonable
to award EUR 5,000 respect of item (a) and EUR 7,500 for item (b) (inclusive of
VAT).
D. Default interest
The Court has taken note of the applicant’s
invitation to apply a default interest to its Article 41 award “equal to the
monthly applicable interest rate published by the Central Bank of Iceland...
until settlement”, that should run from 21 December 2009, the date of the
District Court’s judgment.
However, the Court is of the view that the
applicant’s interest in the value of the present award being preserved has been
sufficiently taken into account in its assessment above and in point 3(b) of
the operative part below. In accordance with its standard practice, the Court considers
it appropriate that the default interest rate 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the
applicant, within three monthsfrom the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, the
following amounts, to be converted into Icelandic krónur at the rate
applicable at the date of settlement:
(i) EUR 4,000(four thousand euros), plus any tax
that may be chargeable,in respect of pecuniary damage;
(ii) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 12,500 (twelve thousandfive hundred
euros) 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
