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FOURTH
SECTION
CASE OF RUOKANEN AND OTHERS v. FINLAND
(Application
no. 45130/06)
JUDGMENT
STRASBOURG
6 April
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 Ruokanen 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,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 16 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45130/06) 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 Heikki Tapani
Ruokanen and Mr Petri Ensio Pöntinen, and a Finnish limited
liability publishing company Yhtyneet Kuvalehdet Oy (“the
applicants”), on 8 November 2006.
- The
applicants were represented by Mr Risto Ryti, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
Foreign Affairs.
- The
applicants alleged, in particular, that their right to freedom of
expression had been violated when they were sentenced for aggravated
defamation.
- On
29 September 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first and second applicants were born in 1951 and 1967 and live in
Helsinki and Tampere respectively. The applicant company is based in
Helsinki. The first applicant is the editor-in-chief of the applicant
company and the second applicant is a journalist.
- On
6 September 2000 a student was allegedly raped at a party which was
held to celebrate a local baseball team's victory in the Finnish
championship. On 11 May 2001 the applicant company published an
article in the magazine Suomen Kuvalehti about this incident
entitled “A student raped at the baseball party”.
The content of the article was the following:
“A girl studying in K. [name of the city] was
raped at the party to celebrate the victory of K.P. [name of the
team] last September. Several players of the team participated in the
rape.
The folk high school of K. confirms that their student
was a victim of rape at the party to celebrate the victory of K.P.
held on 6 September 2000.
The girl had been invited by the gold-medal team to
attend “an after party” in a hotel in K. According to the
information received by Suomen Kuvalehti, the rapist was one
of the players of the team but there were also other players in the
hotel room, some of them holding the victim, some of them watching.
The rape was interrupted when one of the players of the team entered
the room and ordered the others to stop the rape.
The student girl is an adult. She has given a written
statement about the incident but does not wish, at least for the time
being, to report the incident to the police.
The folk high school has reported the incident to the
city officials, to the leaders of the baseball team and to its main
sponsor.
K.P. won the second consecutive gold medal in the
Finnish championship league last autumn. The team defeated S.J.
straight 3-0.”
- The
article did not include any photographs. Moreover, the statement
“Baseball winning party ended in a rape” was
printed on the cover of the magazine.
- The
players had not been contacted for their comments before the article
in question was published but the magazine published in its next
issue a reply given by them in which they denied being guilty of any
crime.
- The
content of the article was based on a statement given by the victim
to the folk high school of K. on the following morning and which had
been corroborated by two witnesses. Several other persons had also
made statements supporting the victim's account of the facts.
- The police started to investigate the alleged rape
after the article had been published. According
to a press release issued by the police on 19 April 2002, the
victim of the alleged rape was not able to identify the offender or
the offenders nor was she able to clarify the events in such detail
that the offence could be attributed to a certain person or persons.
Consequently, the National Bureau of Investigation
(keskusrikospoliisi,
centralkriminalpolisen) interrupted
the pre-trial investigation.
- On
30 October 2002 the public prosecutor brought charges for aggravated
defamation against the first applicant, the editor-in-chief of the
applicant company, and the second applicant, the journalist. The
baseball team pursued a compensation claim against all the
applicants, which was joined to the criminal charges.
- On
26 March 2003 the Espoo District Court (käräjäoikeus,
tingsrätten), after an oral hearing, sentenced the first and
second applicants to pay sixty day-fines, amounting to 3,540 and
1,920 euros (EUR) respectively, for aggravated defamation. Moreover,
all the defendants in the domestic proceedings were jointly and
severally ordered to pay the baseball team EUR 89,000 plus
interest for non-pecuniary damage as well as for costs and expenses.
The court found that the statement made by the rape victim had not
been reliable since she had not brought the issue to the police's
attention. The local public had not been aware of the incident until
the article in question was published in the mass media. All members
of the baseball team had suffered non-pecuniary damage due to the
false accusations published in the article. The court concluded that
the accusations were so serious that their accuracy should have been
verified very carefully, which the applicants had failed to do. As to
the compensation awarded, the court noted that the
defamation was directed at all players of the team and that they
could receive compassionate support from each other. The court took
this into account when reducing the amount of compensation awarded
for their suffering.
- On
9 May 2003 the applicants appealed to the Helsinki Appeal Court
(hovioikeus, hovrätten), claiming that they had had
strong reasons to believe that the accusations were true. If the same
evidence had been presented in criminal proceedings, it would have
led to the conviction of the offender. The police had been aware of
the incident but had not done anything even though rape was an
offence that always required ex officio public prosecution.
The applicants claimed under Article 10 of the Convention that their
right to freedom of expression had been violated.
- The
Helsinki Appeal Court held an oral hearing from 6 to 8 June 2005. On
11 October 2005 it upheld the Espoo District Court's judgment. The
Appeal Court stated the following:
“Freedom of expression and protection of private
life and honour are fundamental rights. According to Article 10 §
1 of the Constitution, everyone's honour is guaranteed. Freedom of
expression and protection of honour are also human rights protected
by the European Convention on Human Rights. Therefore, when
interpreting the extent of these fundamental rights, the case-law of
the European Court of Human Rights must also be taken into account.
...
According to Article 10 paragraph 2 of the European
Convention on Human Rights, the exercise of freedom of expression may
be subject to such restrictions and penalties as are prescribed by
law and are necessary in a democratic society, for the protection of
the reputation of others. The European Court of Human Rights has,
inter alia, in its judgment Karhuvaara and Iltalehti v.
Finland of 16 November 2004 taken a position with respect to the
freedom of expression of journalists, stating that the press must not
overstep certain bounds in respect of the rights and the reputation
of the others, although journalistic freedom also covers possible
recourse to a degree of exaggeration, or even provocation. Similarly
in the case Pedersen and Baadsgaard v. Denmark of 17 December
2004.
According to Article 6 paragraph 2 of the European
Convention on Human Rights, everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law. The
European Court of Human Rights has found in the case Pedersen and
Baadsgaard v. Denmark of 17 December 2004 that the ordinary
journalistic obligation to verify a factual allegation required that
the journalists should have relied on a sufficiently accurate and
reliable factual basis which could be considered proportionate to the
nature and degree of their allegation, given that the more serious
the allegation, the more solid the factual basis had to be. In the
case “Wirtschafts-Trend”
Zeitschriften-Verlagsgesellschaft mbH v. Austria of 14 November
2002 the above-mentioned court stated that, as the case had only
reached an early stage of the criminal proceedings, particular care
had to be taken to protect a person against “trial by the
media” and to give effect to the presumption of innocence.
It must be decided on the one hand whether the honour of
[the players] has been violated and on the other hand, whether there
were sufficient reasons to restrict [the applicants'] freedom of
expression.
The article in question mentions that some of the
players of the K.P. were guilty of rape. As it was mentioned in the
article that the rape took place at the party to celebrate the
victory of K.P., one can reasonably think that it was especially the
players of the winning team that were involved. [The second
applicant] has confirmed during the Appeal Court proceedings that by
players he had meant the players of the winning team.
The article was written in such a manner that any one of
the players could have been guilty of a serious crime. The maximum
sanction for the alleged crime is ten years' imprisonment. Before the
publication of the article, not even the pre-trial investigation had
started. Labelling someone guilty before a matter has been resolved
by a court of law would mean rendering a premature public judgment,
the consequences of which could be difficult to repair. Also and from
the general point of view, taking into account ultimately the ability
of the courts to function, the public must not have false
expectations or misunderstandings (for example KKO 2000:54). The
allegation has violated [the players'] right to the presumption of
innocence. Moreover, the allegation of having committed a serious
crime is an act that is conducive to causing damage and suffering or
contempt. On the above-mentioned grounds the Appeal Court finds, like
the District Court, that [the players'] honour has been violated.
[The applicants] have alleged in the Appeal Court that
the police of K. had known about the rape but had not taken any
measures. Concealing a serious crime is an issue of social relevance
about which the press must be able to write. However, the article
does not mention that the police tried to conceal the matter or that
the folk high school or anybody else had even informed the police. On
the contrary, the article mentioned that the alleged victim did not
want to report the incident to the police. Even though according to
the article the folk high school had reported the incident to the
city officials, to the management of the baseball team and to its
main sponsor, this part of the article does not, bearing in mind the
possibility of the said instances to act in the matter, show any
intention to conceal the matter.
On the above-mentioned grounds, the Appeal Court finds
that the essential function of the press in the core area of freedom
of expression and as a guardian against misuse of power in a
democratic society is not at stake in the present case, even though
the pre-trial investigation into the alleged rape was started only
after the publication of the article.
[The first and second applicants] have not demonstrated
that they had sufficient reasons to believe that the allegations made
in the article were true. They have stated that they did not even try
to contact [the victim], the players or their team. [The first and
second applicants] have declined to reveal their sources. By not
revealing their sources, they have taken the risk of possibly being
convicted for defamation. As stated above, there is no indication
that the alleged rape was commonly known in K. before the publication
of the article. By relying solely on the statement made by the
[victim], in which the perpetrators were not identified in any other
way than that the rape had taken place at the winners' party, [the
first and second applicants] could not have reasonably considered the
statement as being true. The statement was made by private persons
and in order that the folk high school could later demonstrate that
it had given sufficient instructions in the matter. The statement had
not been written on [the victim's] initiative. One could not reach
such a conclusion on the basis of the statement that only some of the
players were guilty of rape. [The first and second applicants] have
failed to verify sufficiently that the information about the players
being guilty of rape was true, although they had had the possibility
to clarify the issue. The nature and the seriousness of the crime
required that the article was particularly accurate.
There are no reasons to estimate that [the players']
right to honour would be lesser than [the first and second
applicants'] right to freedom of expression. Restricting [the first
and second applicants'] right to freedom of expression was necessary
in order to protect [the players'] honour and their presumption of
innocence. ....”
- On
12 December 2005 the applicants applied for leave to appeal to the
Supreme Court (korkein oikeus, högsta domstolen),
reiterating the grounds for appeal relied on before the Appeal Court.
- On
15 May 2006 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW
- Chapter
24 (531/2000), Article 9, of the Penal Code (rikoslaki,
strafflagen) reads as follows:
“A person who (1) spreads false information or a
false insinuation about another person so that the act is conducive
to causing damage or suffering to that person, or subjecting that
person to contempt, or (2) makes a derogatory comment about another
otherwise than in a manner referred to in subparagraph (1), shall be
sentenced for defamation to a fine or to imprisonment for a maximum
period of six months.
Criticism that is directed at a person's activities in
politics, business, public office, public position, science, art or
in a comparable public position and that does not obviously overstep
the limits of propriety does not constitute defamation referred to in
paragraphs (1) and (2).”
- Article
10 of the same Code provides that if, in the defamation referred to
in Article 9, the offence is committed by using the mass media or
otherwise by making the information or insinuation available to a
large number of people, the offender shall be sentenced for
aggravated defamation to a fine or to imprisonment for a
maximum period of two years.
- Section
39 of the Freedom of the Press Act (painovapauslaki,
tryckfrihetslagen; Act no. 909/1974), as in force at the relevant
time, provided that the provisions of the Tort Liability Act applied
to the payment of compensation for damage caused by the contents of
printed material.
- 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,
domestic peace or from another comparable offence. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained under Article 10 of the Convention that their
right to freedom of expression had been violated when they had been
sentenced for aggravated defamation.
- 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 the application 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 claimed that the question of whether or not there had been
a rape ultimately had no significance when assessing the necessity to
restrict freedom of expression, as the applicants had had good
grounds for publishing the case at the time of the publication: the
applicants had relied on a number of sources including a written
statement submitted by the rape victim and verified by two witnesses,
the article had dealt with a serious criminal offence, and although
the rape suspicions had also been known to the local police, no
investigation had been started. The article had not infringed the
presumption of innocence of any of the players as no player had been
mentioned by name. It had also become apparent from the article that
the victim had not wanted the police to investigate the matter. The
magazine had published a reply given by the players in its next issue
in which all the players had denied being guilty of a crime.
- The
applicants pointed out that the fact that the victim had later
withdrawn her identification of one named offender did not have any
significance as far as the applicants' responsibility was concerned
as they knew nothing about the said withdrawal, which took place a
year after the publication of the article. It was undisputed that
during the police investigation the victim had still maintained that
the rape had taken place and that the investigation had only been
suspended, and not terminated for good, since the victim had not been
able and/or willing to contribute to solving the matter.
- The
applicants maintained that it was undisputed that the police and
other people had been aware of the suspected rape prior to the
publication of the article. It was also undisputed that although the
act had been subject to public prosecution, the police had not
started or even tried to launch a pre-trial investigation into the
matter prior to the publication of the article. It did not make any
difference whether the events had been actively concealed or whether
that had been the result of the indifference of the persons who knew
about the events, since the result had been that the information had
in fact been concealed.
(b) The Government
- The
Government agreed that the conviction of the first and second
applicants and the obligation of all applicants to pay damages and
costs had amounted to an interference with their right to freedom of
expression.
- As
to the requirement that that interference be “prescribed by
law”, the Government pointed out that the applicants had not
questioned this. In any event, the measures in question had had a
basis in Finnish law, namely in the Constitution and, in particular,
in Chapter 24, Articles 9 and 10, of
the Penal Code. Moreover, the interference complained of had had a
legitimate aim, namely the protection of the reputation or rights of
others.
30. As
to the necessity requirement, the Government maintained that the
first and second applicants had been convicted by the domestic courts
for having presented false information concerning the players of the
Finnish baseball winning team as they had reported on the Internet
site of a nationwide magazine and in an article published in that
magazine that players of the team had raped a female student. The
text on the front page of the magazine as well as the headline and
the text of the article had clearly indicated that the rape had been
a fact that had actually taken place. The article had not mentioned
any players of the team by name and the suspicion had thus covered
them all. The players came from a small town where they and their
families were well known and could thus be identified from the
article. The rape suspicion had thus been conducive to complicating
the everyday life of the players and their families. However, as the
defamation had been directed at all players of the team and they
could receive compassionate support from each other, the District
Court took this into account by reducing the amount of compensation
awarded for their suffering.
31. The
Government observed that the only source confirming the alleged rape
had been the statement made by the victim. No attempts had been made
by the applicants to contact the victim or the players or their club.
The present case was not about revealing journalistic sources but
about the obligation to verify a factual allegation. The alleged rape
had not at any stage been proved to have taken place. The alleged
victim had withdrawn her allegation of being able to identify those
involved in the rape. The pre-trial investigations had started after
the article was published but as the victim had not been able to
clarify either the events or the offenders, the pre-trial
investigation had to be interrupted. It had not been shown that
information about the alleged rape had been concealed. In the article
itself the passivity of the police had not been mentioned nor had the
police's or anyone else's conduct been questioned. The article itself
had not contributed to any discussion of social significance in the
present case. The factual basis of the article on which the
applicants had relied had not been sufficiently accurate and reliable
to be considered proportionate to the nature and degree of their
allegations. The fact that a reply had been published later on did
not give the players an effective opportunity to defend themselves as
the damage to their reputation had already occurred.
- The
Government concluded that the measures in question, the conviction
and the order to pay damages and costs, had been “proportionate
to the legitimate aim pursued” and the reasons adduced by the
courts to justify them had been “relevant and sufficient”.
2. The Court's assessment
1. Whether there was an interference
- The
Court agrees with the parties that the applicants' conviction, the
fines imposed on them and the award of damages and costs concerning
all applicants 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
- The
Court notes that, according to the Government, the measures in
question had a basis in Finnish law, namely in the Constitution and,
in particular, in Chapter 24,
Articles 9 and 10, of the Penal Code. Moreover, the interference
complained of had a legitimate aim, namely the protection of the
reputation or rights of others. The applicants did not
question this. Therefore the Court concludes 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 and
Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43,
ECHR 2004 X, Eerikäinen and Others v. Finland,
cited above, § 58) and that it 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).
- The
safeguard afforded by Article 10 to journalists in relation to
reporting on issues of general interest is subject to the proviso
that they act in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism (see Bladet
Tromsø and Stensaas v. Norway, 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 v. Norway, cited above, § 58).
- One factor of particular importance is the distinction
between statements of fact and value judgments. While the existence
of facts can be demonstrated, the truth of value judgments is not
susceptible of proof. A requirement to prove the truth of a value
judgment is impossible to fulfil and infringes freedom of opinion
itself, which is a fundamental part of the right secured by
Article 10. However, even where a statement amounts to a value
judgment, the proportionality of an interference may depend on
whether there exists a sufficient factual basis for the impugned
statement, since even a value judgment may be excessive where there
is no factual basis to support it (see Turhan v. Turkey, no.
48176/99, § 24, 19 May 2005, and Jerusalem v. Austria,
no. 26958/95, § 43, ECHR 2001-II).
- The Court notes that special grounds are required
before a newspaper can be dispensed from its ordinary obligation to
verify factual statements that are defamatory of private individuals.
The question of whether such grounds exist depends in particular on
the nature and degree of the defamation in question and the extent to
which the newspaper can reasonably regard its sources as reliable
with respect to the allegations. The latter issue must be determined
in the light of the situation as it presented itself to the
journalist at the material time, rather than with the benefit of
hindsight (see Bladet Tromsø and Stensaas v. Norway,
cited above, § 66).
- 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 editor-in-chief and journalist,
respectively. The Court notes that the issue which is essentially at
stake in the present case is whether the domestic authorities struck
the required balance between the applicants' right to freedom of
expression and the right to reputation of the alleged perpetrators of
a crime.
- The
Court observes at the outset that the article of 11 May 2001 was
entitled “A student raped at the baseball party”.
In addition, the statement “Baseball winning party ended in
a rape” was printed on the cover of the magazine. The
article stated that a student had been raped by one of the baseball
players of the local winning team, that several other players had
participated in the incident but that it had finally been interrupted
by one of the players. The events were described in the article in a
very short and concise manner. It was also mentioned that the girl
was above 18 years of age and that, for the time being, she did not
wish to report the incident to the police. No other reference to the
involvement or inaction of the police was made in the article.
Moreover, it was mentioned that certain city officials, the
management of the baseball team and its main sponsor knew about the
incident.
- The
Court observes first that, in general, the article was written in an
objective manner and its style was not sensational or gossip-like.
The article did not mention the names of any of the persons involved
in the incident nor were any photographs included. However, the
players could be identified by the fact that they belonged to the
local sports club, which was mentioned by name, and that they were
members of the winning team of 2000. They could thus be identified in
their home town, by baseball fans and by a larger public (see Selistö
v. Finland, cited above, § 64) and therefore suffer damage
to their reputation (compare and contrast Bladet Tromsø and
Stensaas v. Norway [GC], cited above, § 67).
- The
applicants claimed that they wrote about an issue of public interest,
namely about a serious crime that had allegedly been committed by
private persons and in respect of which no investigation had been
started. However, the Court notes that the applicants did not mention
this issue anywhere in the article, failing thus to demonstrate that
the issue was of public interest. Moreover, the allegations were of a
serious nature and were presented as statements of fact rather than
value judgments. As regards the nature and degree of the defamation,
the accusations of rape were found defamatory by the domestic courts
because the accused were said to have committed a crime (see Thorgeir
Thorgeirson v. Iceland, 25 June 1992, § 66, Series A
no. 239). Moreover, nothing in the article indicated that the city
officials had tried to conceal the crime imputed to the members of
the baseball team.
- As
to the reliability of the sources, the Court notes that the
applicants based their article on the victim's statement given to the
folk high school of K. which was corroborated by several witnesses
interviewed by the applicants but who wished to remain anonymous. The
Appeal Court found that the applicants had not been able to show that
they had had sufficient reasons to believe that the accusations were
true and that by not revealing their sources, they had taken the risk
of being convicted of defamation. In this connection the Court
recalls that protection of journalistic sources is one of the basic
conditions for press freedom without which sources may be deterred
from assisting the press in informing the public on matters of public
interest (see Financial Times Ltd and Others v.
the United Kingdom, no. 821/03, §
59, 15 December 2009). However, the Court observes that in the
instant case the applicants were at no stage required to disclose the
identity of their sources. Moreover, they failed to take any steps to
verify whether the accusation had a basis in fact, although they had
the possibility to clarify the issue by contacting the victim, the
players and their team.
- As
stated by the Appeal Court, the alleged rape was presented in the
article as a fact although the criminal investigation only started
after the publication of the article. Article 6 § 2 requires
that everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law. The Court therefore
considers that the article violated the presumption of innocence of
the players and defamed them by stating something as a fact which had
not yet been established.
- Moreover,
the Court has taken into account the severity of the sanctions
imposed on the applicants. It observes that the first and second
applicants were ordered to pay sixty day-fines, amounting to EUR
3,540 and EUR 1,920 respectively. In addition, all three
defendants in the domestic proceedings, together with the publishing
company, were ordered to pay damages and costs and expenses jointly
and severally in a total amount of EUR 89,000 plus interest, of which
EUR 81,600 plus interest was attributable to the three
applicants in the present case before the Court. However, it should
be borne in mind that the amount of compensation to be paid by the
applicants to the members of the baseball team was only EUR 4,000
or EUR 5,000 per member although there were twelve members in the
team. For the Court, this approach must be seen as illustrative of
the domestic courts' search for a proportionate response to the
interference with the applicants' Article 10 rights.
50. Finally,
the Court notes that in the instant case the first and second
applicants were subjected to a criminal law sanction (for which, see
for example Raichinov v. Bulgaria, no. 47579/99, §
50, 20 April 2006, and the case-law cited therein). 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, the Court notes that 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). 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 considers that the penalties in the present case, although they
might be viewed as quite severe as such, were, seen against the
background of the circumstances of the case, proportionate in regard
to the competing interests at stake. The severity of the
sentence and the amounts of compensation awarded must thus be
regarded as falling within the respondent State's margin of response
in the circumstances of the instant case. Nor can it be argued that
the penalties imposed produced a “chilling effect” on
media freedom seen in terms of investigative journalism and the right
of the public to be informed of matters of public concern. The
commission of a crime and the circumstances in which it is committed
are matters of public concern. The Court's case-law, however, clearly
illustrates that other imperatives have to be weighed in the balance
before an incident is reported by the media to the public as fact.
The Court has already underscored the importance of the presumption
of innocence in this connection. The right to reputation of third
parties is of equal importance especially where serious accusations
of sexual misconduct are concerned.
- In
conclusion, the reasons relied on by the domestic courts, especially
by the Appeal Court which in its judgment referred in particular to
the Court's case-law, were sufficient to show that the interference
complained of was “necessary in a democratic society”.
Moreover, the sanctions imposed were proportionate. Having regard to
all the foregoing factors, and in particular the margin of
appreciation afforded to the State in this area, the Court considers
that the domestic courts struck a fair balance between the competing
interests involved.
- Accordingly,
there has therefore been no violation of Article 10 of the
Convention.
FOR THESE REASONS, THE COURT
- Declares the application admissible unanimously;
- Holds by five votes to two that there has been
no violation of Article 10 of the Convention.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) Dissenting
opinion of Judge Bratza;
(b) Dissenting
opinion of Judge Bianku.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE BRATZA
- I
am unable to agree with the majority of the Chamber that the
applicants' Convention rights were not violated in the present case.
In my view, the prosecution and conviction of the applicants and the
penalties imposed and damages awarded against them for publishing the
article on 11 May 2001 amounted to a disproportionate
interference with their freedom of expression and were in clear
violation of their rights under Article 10.
- In
reaching this conclusion, I place reliance on a number of specific
features of the case to which, in my view, the majority have given
no, or no sufficient, weight.
- In
the first place, the events referred to in the article were clearly
matters of public interest and, as is acknowledged in the judgment,
were described in a manner which was short, concise and objective and
in a tone which was moderate and not sensational or salacious. The
article did not identify the student concerned, recording only that
she was an adult; it included no photographs nor did it mention the
names of the alleged assailant or of any of those who allegedly
participated in the incident.
Emphasis
is placed by the majority of the Chamber on the fact that, even if
unnamed, the players involved could be identified since they belonged
to the local sports club which was mentioned by name and since they
would be known in their home town, by baseball fans and by a larger
public, thereby suffering damage to their reputation. While the
accusation made in the article was doubtless very serious, I attach
importance to the fact that it did not suggest that all or any
particular members of the team were involved in the alleged rape; one
was, indeed, expressly exonerated, the article recording that the
player had intervened to stop the assault. In this respect the case
bears a strong resemblance to that of Bladet Tromsø and
Stensaas v. Norway [GC], no. 21980/93, § 67, ECHR
1999-III, in which it was alleged that members of the 17-man crew of
a seal hunting vessel, the M/S Harmoni, had committed
reprehensible and unlawful acts of cruelty on the animals. The
impugned article named 10 crew members whom the seal hunting
inspector had exonerated. While the remaining crew members of the
vessel were easily identifiable, the Court observed that the
potential adverse effect of the impugned statement on the reputation
and rights of each individual was “significantly attenuated by
several factors. In particular the fact that the criticism was not an
attack against all the crew members or any specific crew member (see
the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series
A no. 239, p. 28, § 66)”. In the same way, in the present
case the impact of the article was substantially attenuated by the
fact that no accusation was levelled against any specific team member
or against all the members of the team.
- Secondly,
although the article was published some months after the alleged
assault, it accurately recorded a contemporary statement made by the
student herself one day after the alleged rape. It has never been
disputed that the statement was made; nor has it been disputed that
the statement was supplied to the folk high school of the town or
that the school reported the alleged incident at the time to
officials of the town, to the management of the baseball team in
question and to its main sponsor. The applicants claimed in the
domestic proceedings that the student's statement had also been
corroborated by several witnesses who had been interviewed by the
magazine but who wished to remain anonymous and whose identity could
not be disclosed.
- The
Appeal Court found that, despite this evidence, the applicants had
failed to show that they had sufficient reasons to believe the
accusations to be true: they had not tried to contact the student
herself, the players or their team and, by not revealing their
sources, they had taken the risk of being convicted of defamation.
- In
my view, this is to impose too heavy a burden of proof on defendant
journalists in a criminal trial for defamation. It is, I consider, of
central importance that the allegation of rape was not made for the
first time in the magazine article published in May 2001. It was an
allegation which had been formally made in a signed and witnessed
statement and notified not merely to public officials but to the
management of the team itself some 8 months before. What, to my mind,
is more striking than any failure on the part of the applicants to
seek the comments of the team on the allegation, is the apparent
failure on the part of the public officials or management of the team
to investigate the allegation at the material time with a view to
establishing its truth or falsity and, in the event of its being
found to be false, to issue a denial or to take action against the
student herself for defamation. In these circumstances, to hold not
only that the applicants, as defendants, were required to adduce
further proof of the truth of the allegation but that they could only
do so by disclosing their sources and identifying witnesses to whom
they had guaranteed anonymity is to set the bar too high.
- For
substantially the same reasons, I find no force in the Government's
argument that, since the comments of the team had not been sought in
advance of the publication of the article, the players had not been
given an effective opportunity to defend themselves. The team and its
members had been aware of the allegations and were in a position to
answer them long before the article was published and, when invited
by the magazine to reply to the allegations, did so merely by denying
that any of the players were guilty of any crime.
- Thirdly,
I note that when the case was referred to the police after
publication of the article and became the subject of an
investigation, the student's account that she had attended a party to
celebrate the team's victory and had there been raped by a member of
the team was not rejected as a fabrication. According to the press
release issued by the police in April 2002, the investigation was
suspended only because the victim of the alleged rape had not been
able to identify the offender or offenders or “to clarify the
event in such detail that the offence could be attributed to a
particular person or persons”.
- Finally,
in assessing the proportionality of the interference, I attach
considerable weight to the fact that resort was had to criminal
proceedings against the applicants and to the combination of the
penalties imposed and the very substantial award of damages made in
favour of the members of the team.
It is
true that the Court has consistently held that, in view of the margin
of appreciation left to Contracting States by Article 10, a criminal
measure in response to defamation cannot, as such, be considered
disproportionate to the aim pursued. However, it is also true that,
in holding an interference with freedom of expression to have been
disproportionate, the Court has on several occasions placed reliance
on the fact that recourse could have been had to measures other than
criminal sanctions, notably civil remedies (see, for example,
Lehideux and Isorni v. France, judgment of 23 September 1998,
Reports 1998-VII, §§ 51 and 57; Raichinov v. Bulgaria
no. 47579/99, § 50, 20 April 2006). There appears to have been
no reason in the present case why members of the team could not have
been left to pursue their civil remedies against the applicants had
they seen fit to do so.
- While
acknowledging that the applicants were made subject to criminal law
sanctions and that the penalties imposed might be viewed as “quite
severe”, the majority of the Chamber consider that they may be
seen as proportionate having regard to the competing interests at
stake. I cannot agree. The individual applicants were not only
convicted of a criminal offence but were ordered to pay 60 day-fines
amounting to EUR 3,540 and EUR 1,920, respectively. In addition, all
three defendants to the domestic proceedings, together with the
publishing company, were ordered to pay damages and costs and
expenses jointly and severally in a total amount of EUR 89,000 plus
interest to the members of the baseball team, out of which EUR 81,600
plus interest was attributable to the present applicants before the
Court. Even if, contrary to my view, the prosecution and conviction
of the applicants had been otherwise justified under Article 10, I
consider that the very substantial sums imposed by way of fines and
awarded in compensation, in a case where no individuals had been
identified as having committed or participated in the alleged rape,
were out of all proportion to any legitimate aim served.
DISSENTING
OPINION OF JUDGE BIANKU
- I
voted for a violation of Article 10 of the Convention in this case.
While I join Judge Bratza in his dissenting opinion I would like to
add the following.
- From
my reading of the case I think that more attention should be given to
the fact that the article written by the applicants mentioned
especially that the events were reported to, among others, the city
officials.
- I
do understand the concerns of the majority of the Chamber in relation
to the responsibility of the media in reporting serious allegations
such as the one at issue. But, on the other hand, I do consider that
as such, the reporting of an allegation for rape to the local
authorities was a matter of fact in this case. Their inaction as well
was a matter of fact. I do consider that the reaction –
especially inaction - of public authorities in cases of allegations
of rape is of public interest and even concern, which leads also to a
positive obligation of the authorities to intervene (see X and Y
v. Netherlands, no. 9878/80, 26 March 1985, in Reports 1985, §
23 and MC v. Bulgaria (Application no. 39272/98) 4 December 2003 in
Reports 2003-XII, §§ 150-153). It is true that the
presumed victim in this case was an adult, contrary to the cases to
which I refer above. Nevertheless, to my mind, the reaction of local
authorities over allegations of rape remains a question of public
concern.
- Under
this perspective, in addition to the arguments put forward by
Judge Bratza in his dissenting opinion, I consider that the
criminal conviction of the applicants and the heavy damages they were
ordered to pay in this case were not proportionate under Article 10 §
2 of the Convention.
