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FOURTH
SECTION
CASE OF REINBOTH AND OTHERS v. FINLAND
(Application
no. 30865/08)
JUDGMENT
STRASBOURG
25 January
2011
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 Reinboth and Others
v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 4 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30865/08) 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, Ms Susanna Helena
Reinboth and Mr Janne Sakari Virkkunen, and a Finnish newspaper
company Helsingin Sanomat Oy (“the applicants”), on 24
June 2008.
- The
applicants were represented by Mr Petteri Sotamaa, 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 they had been convicted of a
crime in violation of Article 7 of the Convention and that their
right to freedom of expression under Article 10 of the Convention had
been violated.
- On
10 September 2008 the President of the Fourth Section decided to
communicate the applicants' complaints under Articles 7 and 10 to the
Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first and second applicants were born in 1963 and 1948 and live in
Helsinki. The applicant company is based in Helsinki. The applicant
company is the publisher of a daily newspaper called Helsingin
Sanomat which has a circulation of approximately 430,000. The
first applicant was a journalist and the second applicant the
editor-in-chief of the publication at the relevant time.
- On
3 February 2000, during the presidential election campaign, a short
article was published in the newspaper Ilta-Sanomat, entitled
“The ex-husband of [R. U.] and the person in charge of
communications for the [E.A.] campaign have found each other”.
The article stated that P.N., who was separated from his wife, had
found a new partner, O.T. The wife of P.N. was known as a political
reporter in the election-related TV debates and previously as a news
reader. It was mentioned in the article that O.T. was in charge of
communications for the E. A. campaign and that, in her civilian life,
O.T. was the communications manager in a specified pension insurance
company and a mother.
- The
article went on to state that, before joining the campaign, O.T. had
been active in the same political party as P.N. and that she had been
involved in some “insider committees”. The article
continued to note that P.N. worked as a director for F., a company
promoting Finnish exports, and that in the 1990s he had been posted
in New York, where his wife had followed him, taking leave from her
own job. The article stated that P.N. and his wife had two children
and that they had separated in the autumn of 1999. Pictures of O.T.
and P.N.'s wife were included in the article.
- On
1 February 2002 the journalist and the editor-in-chief of
Ilta-Sanomat were convicted by the Forssa District Court
(käräjäoikeus, tingsrätten) for having
violated O.T.'s private life by publishing the original article. On
12 December 2002 and 4 July 2005, respectively, the Turku Court of
Appeal (hovioikeus, hovrätten) and the Supreme Court
(korkein oikeus, högsta domstolen) upheld the judgment.
These proceedings were public.
- On
2 and 10 February 2002 the applicant company published two articles
on the trial and the judgment of the Forssa District Court, written
by the first applicant and approved by the second applicant.
- The
first article summarised the judgment of the District Court,
including O.T.'s full name and the court's sentence. It also
described the court proceedings and stated that the decision had
required a vote as one of the lay members of the court would have
preferred to dismiss the charges. Moreover, the first article also
included some of the details about O.T.'s private life already
published in the original article of 3 February 2000.
- The
second article was published as a legal column in a Sunday edition of
the paper. The article reproduced the content of the original article
without mentioning any names. It made reference to the trial and went
on to explain the history of the Penal Code section concerning
invasion of privacy that had been introduced in 1974. The
article went on to state that the law did not define privacy, but
left it to the courts to interpret on a case-by-case basis. The
section was amended in 2000, but the only change in essence,
according to the article, was the title of the section, now known as
dissemination of information violating private life. The
article further noted that the worst fears of the press had never
materialised but there had been some surprises. The article made
reference to a decision of the Supreme Court from 2001 to convict
Alibi magazine for publishing a story with a picture and the
name of a person who was at the time accused and later convicted of
fraud on public pension funds. The article then reverted to the
judgment in question pondering, without mentioning any names, as to
who could be considered a private person and what was the
responsibility of such a person with regard to his or her public
performance and behaviour.
- On
14 March 2002 O.T. requested that a criminal investigation be
initiated against the applicants on the basis of the articles. The
prosecutor pressed charges on 31 January 2003 and the applicants were
summonsed on 31 March and 1 April 2003.
- As
the original decision of 1 February 2002 by the Forssa District Court
had been upheld by the Turku Court of Appeal on 12 December 2002 and
was pending before the Supreme Court, the Vantaa District Court
decided on 15 September 2004 to wait for the final decision in the
original case before examining the applicants' case. It is stated in
the decision of the Vantaa District Court that the request for
adjournment was made by the applicants. This is contested by the
first applicant.
- On
4 July 2005 the Supreme Court gave a lengthy judgment in the case
against Ilta-Sanomat (KKO 2005:82) wherein the question
of whether the article had infringed O.T.'s privacy was thoroughly
examined in the light of the national legislation and the case-law of
the Court.
- On
18 October 2005 the Vantaa District Court held a hearing in the
applicants' case.
- On
3 November 2005 the District Court convicted the applicants of
dissemination of information violating private life. The first
applicant was ordered to pay 740 euros (EUR), the second applicant
EUR 1,140, both amounts being 10 day fines as adjusted by their
taxable income. All three applicants were ordered jointly to pay
compensation to O.T. in the amount of EUR 6,000 plus interest
for suffering and distress and EUR 11,845.95 plus interest for her
legal costs.
- The
court found that as two years had passed since the publication of the
original article, O.T. was now entitled to the total enjoyment of
private life and that there had thus been no ground for the
disclosure of her name. As to the legality principle, a Penal Code
could not be drafted in a manner covering all possible situations
that might be envisaged. The first applicant had been well aware of
the legal situation, and the interpretation of the provision in
question had been well established and foreseeable. When a court
found that private life has been invaded, another offence will be
committed if that judgment is reported by mentioning the very same
details of private life. The court was not unanimous as one of the
lay judges dissented.
- By
letters dated 30 November and 1 December 2005 the applicants appealed
to the Helsinki Court of Appeal claiming, inter alia, that the
conviction and sanctions imposed on them violated Article 10 of the
Convention and that no grounds had been presented to show why it had
been necessary in the present case to restrict their freedom of
expression. Confidential information could only be disclosed once.
The District Court judgment was public and everyone had a
constitutional right to have information about a public document. The
information had also been published twice before. The applicants had
lacked intent as they had not realised that they were committing a
crime when publishing the articles.
- On
20 April 2007 the Court of Appeal upheld the Vantaa District Court's
judgment. The applicants were obliged to cover O.T.'s legal fees
before the Court of Appeal in the amount of EUR 2,623 plus interest.
The court found that the present case was about conflicting
fundamental rights, namely the core areas of protection of private
life and the margins of the freedom of expression. It was not
juridically relevant whether the disclosed information was based on
court case files or whether somebody else had earlier disclosed that
information. As the Forssa District Court had on 1 February 2002
already found that the information disclosed in the original article
had invaded O.T.'s privacy and as she was no longer in the same
position as in 2000, the applicants had had no right to disclose her
name when reporting on the Forssa District Court judgment.
- By
letters dated 24 May and 13 June 2007 the applicants appealed to the
Supreme Court, reiterating the grounds of appeal already presented
before the Court of Appeal.
- On
28 December 2007 the Supreme Court refused the applicants leave to
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
- Article
8 of the Constitution of Finland (Suomen perustuslaki, Finlands
grundlag, Act no. 731/1999) provides that no one shall be
found guilty of a criminal offence or be sentenced to a punishment on
the basis of a deed, which has not been determined punishable by an
Act at the time of its commission. The penalty imposed for an offence
shall not be more severe than that provided by an Act at the time of
commission of the offence.
- Article
10 of the Constitution guarantees everyone's right to private life.
According to it,
“Everyone's private life, honour and the sanctity
of the home are guaranteed. More detailed provisions on the
protection of personal data are laid down by an Act.
The secrecy of correspondence, telephony and other
confidential communications is inviolable.
Measures encroaching on the sanctity of the home, and
which are necessary for the purpose of guaranteeing basic rights and
liberties or for the investigation of crime, may be laid down by an
Act. In addition, provisions concerning limitations of the secrecy of
communications which are necessary in the investigation of crimes
that jeopardise the security of the individual or society or the
sanctity of the home, at trials and security checks, as well as
during the deprivation of liberty may be laid down by an Act.”
- Article
12 of the Constitution concerns the freedom of expression and
provides the following:
“Everyone has the freedom of expression. Freedom
of expression entails the right to express, disseminate and receive
information, opinions and other communications without prior
prevention by anyone. More detailed provisions on the exercise of the
freedom of expression are laid down by an Act. Provisions on
restrictions relating to pictorial programmes that are necessary for
the protection of children may be laid down by an Act.
Documents and recordings in the possession of the
authorities are public, unless their publication has for compelling
reasons been specifically restricted by an Act. Everyone has the
right of access to public documents and recordings.”
B. Penal Code
- Chapter
24, section 8, of the Penal Code (rikoslaki, strafflagen as
amended by Act no. 531/2000) reads as follows:
“Dissemination of information violating private
life:
A person who unlawfully (1) through the use of the
mass media, or (2) in another manner publicly spreads information, an
insinuation or an image of the private life of another person, such
that the act is likely to cause that person damage or suffering, or
subject that person to contempt, shall be convicted of injuring
personal reputation and sentenced to a fine or a maximum term of two
years' imprisonment.
The spreading of information, an insinuation or an image
of the private life of a person in politics, business, public office
or a public position, or in a comparable position, shall not
constitute injury to personal reputation, if it may affect the
evaluation of that person's activities in the position in question
and if it is necessary for the purposes of dealing with a matter of
importance to society.”
26. According
to the travaux
préparatoires
(see government bill HE 184/1999), the content of this provision
corresponds to the old Chapter 27, section 3(a), of the Penal
Code. The amendments and clarifications made to the existing
provision were mainly technical. The provision thus still restricts
the protection of the private life of persons having important
political or economic powers. Functions in respect of
which the protection of private life is narrower in scope under
paragraph 2 include political functions, business functions and
public functions or duties. The matter must have social significance.
This restriction, however, applies
only to the persons referred to, not to their close friends and
family. According to the Parliamentary Law Committee's Report
(lakivaliokunnan mietintö, lagutskottets betänkande
LaVM 6/2000), the purpose of that provision is to permit the
dissemination of information on the private life of such persons if
the information may be relevant in assessing the performance of their
functions.
- The
government bill HE 184/1999 further
provides that in the assessment of interferences with private life,
the lawfulness of the interference and the concept of private life
are taken into account. The publicity of a document
does not automatically give the right to present in the mass media
information concerning one's private life included in the document. A
person's consent to the provision of information has relevance in the
assessment of the lawfulness of the interference. Without
explicit consent, there is usually no reason to believe that the
person in question would have consented to the publication of
information relating to private life (see Parliamentary Law
Committee's Report LaVM 6/2000). Moreover, private life is, in
particular, protected against dissemination of information which may
be correct as such. In order for the act to be punishable, it is
necessary that the information concerns the private life of the
person in question (see government bill HE 184/1999). With regard to
the concept of private life, a reference is made to the explanatory
works concerning the Constitutional provisions on fundamental rights
and to the government bill HE 84/1974.
- In
the travaux préparatoires concerning the old
Chapter 27, section 3(a), of the Penal Code (see
government bill HE 84/1974), there was no precise definition of
private life but matters such as, inter alia, family life,
spare time activities, health and relationships and such conduct in
socially significant positions that had no significance to the
relevant exercise of power, were considered as a part of private
life. It was further required that the act might have caused damage
or suffering. Such damage might have also been “immaterial
damage, which might have manifested itself in problems with social
interaction or respect”. An ordinary person enjoyed the
strongest protection of private life. His or her involvement in an
incident of importance to society might have warranted an exception
to the protection. In any case, if an offence was of such a kind that
it could not be regarded as having social significance, it was a
matter to be protected as belonging to the sphere of private life,
otherwise the protection of private life did not restrict publishing.
Moreover, the publishing could not be to a greater extent than was
necessary. Thus, the necessity of mentioning a person's name or other
description of a person enabling identification was always subject to
careful consideration.
C. Provisions concerning publicity
- The
Act on the Openness of Government Activities (laki viranomaisten
toiminnan julkisuudesta, lagen om offentlighet i myndigheternas
verksamhet; Act no. 621/1999) contains provisions on the right of
access to official documents in the public domain, officials' duty of
non-disclosure, document secrecy and any other restrictions of access
that are necessary for the protection of public or private interests,
as well as on the duties of the authorities to achieve the objectives
of the Act. However, there are specific provisions that apply to
court hearings.
- According to section 22 of the Act on the Publicity of
Court Proceedings in General Courts (laki oikeudenkäynnin
julkisuudesta yleisissä tuomioistuimissa,
lagen om
offentlighet vid rättegång i allmänna domstolar;
Act no. 370/2007), the court decisions are public unless the court
orders that they be kept secret. The parties and the public have the
right to be present when the decisions are pronounced.
31. According
to the preparatory works of the Act (see government
bill HE 13/2006),
“... the case files are to a large extent public
and the publicity does not limit itself to publicity of oral
hearings. On the other hand, in Finland the publicity of the case
files does not automatically mean that all public documentation could
as such, for example, without invading privacy, be published in the
media. This right of the media to publish is limited not only by its
self-regulation but also for example by the provisions of the Penal
Code concerning the protection of privacy. It can, thus, be said that
publicity is wider and the control of the protection of privacy is
done mostly in arrears. It is for the media themselves to consider
which of the public documentation they shall publish.”
D. Provisions concerning liability
- Section
39 of the Freedom of the Press Act (painovapauslaki,
tryckfrihetslagen; Act no. 1/1919), 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 content 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,
home or private life. Under Chapter 5, section 1, of the said
Act, damages shall constitute compensation for personal injury and
damage to property. Section 2 provides that a person who has suffered
personal injury shall be entitled to damages to cover medical costs
and other costs arising from the injury, as well as loss of income
and maintenance and pain and suffering.
- According
to the government bill to amend the Tort Liability Act (HE 116/1998),
the maximum amount of compensation for pain and suffering from, inter
alia, bodily injuries had in the recent past been approximately
FIM 100,000 (EUR 16,819). In the subsequent government bill to amend
the Tort Liability Act (HE 167/2003, p. 60), it is stated that
no changes to the prevailing level of compensation for suffering are
proposed. In the recommendation of the Personal Injury Advisory Board
(Henkilövahinkoasiain neuvottelukunta, Delegationen för
personskade-ärenden) in 2008, compensation awards for
distress in defamation cases can go up to EUR 10,000 and in cases
concerning dissemination of information violating personal privacy up
to EUR 5,000. On the other hand, the maximum award for, for example,
attempted manslaughter, murder or killing varies between EUR 3,000
and EUR 5,000.
E. Supreme Court practice
- The Supreme Court decision (KKO 1980-II-99)
concerned public showing of a series of photographs of half-naked
children. The act was committed before the entry into force of
Chapter 27, section 3(a), of the Penal Code and no criminal sanctions
were requested.
- In
a Supreme Court decision (KKO 1980 II 123) the following was
noted (summary from the Yearbook):
“The accused had picked up a photograph of the
plaintiff from the archives of a newspaper and published it in the
context of an electoral campaign without the plaintiff's consent. He
was convicted of a violation of private life and ordered, jointly
with the political organisations which had acted as publishers, to
pay damages for mental suffering.”
- On
11 June 1997 the Supreme Court delivered two decisions relating to
articles which had given information on cases of arson. The first
decision (KKO 1997:80) concerned a newspaper article (summary
from the Supreme Court's Yearbook):
“A newspaper published an article concerning cases
of arson, in which it was said that the suspect was the wife of the
head of a local fire department. As it was not even alleged that the
head of the fire department had any role in the events, there was no
justifiable reason for publishing the information on the marriage
between him and the suspect. The publisher, the editor-in-chief and
the journalist who wrote the article were ordered to pay compensation
for the suffering caused by the violation of the right to respect for
private life.”
- The
second decision (KKO 1997:81) concerned an article published
in a periodical, which was based on the afore-mentioned newspaper
article (see the previous paragraph) and on the records of the
pre-trial investigation and the court proceedings, but did not
indicate that the newspaper article had been used as a source
(summary from the Yearbook):
“Compensation was ordered to be paid for the
reason that the article violated the right to respect for private
life. Another issue at stake in the precedent was the relevance to
liability for damages and the amount of compensation of the fact that
the information had been reported in another publication at an
earlier stage.”
The article published in
the periodical had similarly mentioned the name and profession of the
head of the fire department, although the offence was not related to
the performance of his duties. Thus, it had not been necessary to
refer to his position as head of the fire department or to his
marriage to the suspect in order to give an account of the offence.
The fact that the information had previously been published in print
did not relieve the defendants of their responsibility to ensure,
before publishing the information again, that the article did not
contain information insulting the persons mentioned in it. The mere
fact that the interview with the head of the fire department had been
published in the newspaper did not justify the conclusion that he had
also consented to its publication in the periodical. Repeating a
violation did not necessarily cause the same amount of damage and
suffering as the initial violation. The readers of the newspaper and
the periodical were partly different, and the circulation of the
newspaper apparently did not entirely coincide with that of the
periodical. Therefore, and considering the differences in the content
and tone of the articles, the Supreme Court found it established that
the article published in the periodical was conducive to causing the
head of the fire department additional mental suffering. The events
reported in the article did not concern the plaintiff's conduct in
the performance of his duties as head of the fire department and it
had not been necessary to mention the complainant's name and
profession for the purpose of discussing a matter involving
significant public interest or reporting on the offences. By
associating the complainant's name and profession with the offences
in question, the article had unlawfully spread information and
insinuations concerning his private life likely to cause him damage
and suffering. The disclosure of the complainant's name and the
emphasis on his occupation had amounted to an insult. By again
reporting on the matter two months after the events had occurred, the
periodical was found to have caused the complainant additional
suffering for which separate compensation was to be paid.
- The
Supreme Court's decision of 26 September 2001 (KKO 2001:96)
concerned the publication in a magazine of an article which had
described a pending criminal case in which the accused had been
charged with, inter alia, aggravated fraud. The article had
been illustrated, without the accused's permission, with another
article published previously in another magazine and with a picture
of the accused published in that connection. The accused's name had
been given in the text of the article and she could be recognised
from the picture. The Supreme Court found that the criminal case had
no such social significance that would justify its publication
without the accused's permission and, consequently, her private life
had been invaded.
- The
Supreme Court's decision of 25 June 2002 (KKO 2002:55)
concerned an incident following which A., a public figure, and B.,
his female friend, had been convicted. When interviewing A., B.'s
name was mentioned in the television broadcast in January 1997, that
is, after they had been convicted. The court found that the facts
discussed in the television programme with regard to B. were part of
her private life and enjoyed the protection of privacy. The fines
imposed on her as punishment for the assault did not constitute a
criminal-law sanction justifying publication of her name. The
interviewer and the television company were ordered to pay B. damages
in the amount of EUR 8,000 for disclosing her identity in the
television programme.
- The
decision of 4 July 2005 (KKO 2005:82) concerned the publishing
of the original article in the present case. The article had been
written about a relationship between A., who worked as a press
officer for a candidate in the presidential elections, and B., the
ex-spouse of a TV journalist. A.'s photo was included in the article.
The Supreme Court, having assessed the provision on the invasion of
privacy in the Penal Code in the light of this Court's case-law,
found that A. did not hold a position that meant that such details of
her private life were of public importance. The article had thus
invaded A.'s privacy.
- In
a decision of 19 December 2005 (KKO 2005:136), the Supreme
Court noted that an offence was not a private matter for the
offender. In principle, however, a person convicted of and sentenced
for having committed an offence also enjoyed the right inherent in
private life to live in peace. According to the Personal Data Act,
any information about the commission of an offence and the resulting
sentence qualified as “sensitive” personal data. The
publicity per se of criminal proceedings and of related
documents did not mean that information made public during the
proceedings could be freely published as such by the media. The
Supreme Court concluded that publishing the name of a person
convicted of, inter alia, assault and deprivation of liberty
did not invade his privacy as the person concerned had been convicted
of offences of violence which had also degraded the victim's human
dignity. Furthermore, the article in question did not include his
photo.
- The
Supreme Court's decision of 16 March 2006 (KKO 2006:20)
concerned the scope of the private life of a leading public
prosecutor whose name or identity had not been revealed in an article
which mainly concerned his wife, who had been suspected of having
committed a crime. The Supreme Court concluded that the issue had had
social significance as the person under suspicion was the public
prosecutor's wife. Even though the public prosecutor could have been
identified from the article, this was justified by the fact that his
own impartiality as a prosecutor was at stake.
- In
the Supreme Court's decision of 22 January 2009 (KKO 2009:3)
A. had been convicted of incest with his children and the case file
was declared secret. Later A. revealed certain details of the case in
a television programme. The court found that, even though the
children had remained anonymous in the programme, they could still be
identified because A. had appeared in the programme undisguised and
his first name had been given. The privacy of the children and their
mother had thus been invaded.
- The
latest Supreme Court decision of 16 June 2010 (KKO 2010:39)
concerned invasion of privacy of the Prime Minister by his
ex-companion. The Supreme Court found that the ex-companion had had
no right to disclose intimate details about the Prime Minister's
private life and their dating in her book.
F. Self-regulation of journalists
- The
Union of Journalists in Finland (Suomen Journalistiliitto,
Finlands Journalistförbund ry) publishes Guidelines for
Journalists (Journalistin ohjeet, Journalistreglerna)
for the purposes of self-regulation. The 1992 Guidelines were
in force at the material time and provided, inter alia, that
matters falling in the sphere of private life, being detrimental to
the relevant party or his or her near relative, should not be
published unless the matters are of general significance (Article
24). The principles concerning the protection of an individual also
apply to the use of information contained in public documents or
other public sources. Information being public does not always mean
that it is freely publishable (Article 29).
- New
Guidelines came into force in 2005, which noted that when publishing
public material regard must be had to the protection of private life.
Highly delicate information relating to one's personal life may only
be published with the consent of the person in question, or if such
matters are of considerable public interest (Article 27).
- Also
the Council for Mass Media (Julkisen sanan neuvosto,
Opinionsnämnden för massmedier), which is a
self-regulating body established in 1968 by publishers and
journalists in the field of mass communication and whose task it is
to interpret good professional practice and defend the freedom of
speech and publication, has issued a number of resolutions and
statements, inter alia, in 1980 and 1981. The former concerned
the content of private life and the latter disclosure of names in
crime news coverage.
- In
its statement of 1980, the Council for Mass Media stated, inter
alia, that the protection of private life applies, in principle,
to all citizens. The greater and more profound social implications a
matter has, the more important it is to be able to publish
information thereon. The Council divided persons into three groups as
to the protection of identity: (1) persons exercising political,
economic or administrative power; (2) other public persons, for
example in the sectors of entertainment, sports, arts or science; and
(3) ordinary citizens. The Council noted that the protection of
identity is narrowest for group 1 and most extensive for group 3.
However, this scale was not to be used formally, but the extent of
protection should be interpreted on a case by case basis. A person's
position had a great significance in determining the protection of
private life but that alone could not be considered as a decisive
factor. The significance of a matter also had an important impact.
The conduct of a well-known person appearing in
public in connection with his or her professional tasks or public
role does not as such belong to such person's protected private life.
On the contrary, information concerning lifestyle does normally
belong to such person's sphere of private life even though his or her
sphere of protection is narrower than that of an ordinary citizen. In
some cases information concerning a person's lifestyle can be closely
connected to his or her professional tasks in a way that its
publication is justified. It is required, however, that the matter in
question does have considerable general significance. Also, the
publishing should not extend further than is necessary for the
consideration of the matter. Finally, it is in accordance with good
journalistic practice to see to it that the publishing does not cause
undue suffering for the person in question or for his or her
relatives.
III. RELEVANT INTERNATIONAL MATERIALS
- On
10 July 2003 the Committee of Ministers of the Council of Europe
adopted Recommendation No. Rec(2003)13 on the provision of
information through the media in relation to criminal proceedings. In
points 1, 2 and 8 of the principles appended to the recommendation,
it considers as follows:
“The public must be able to receive information
about the activities of judicial authorities and police services
through the media. Therefore, journalists must be able to freely
report and comment on the functioning of the criminal justice system,
subject only to the limitations provided for under the following
principles.
Respect for the principle of the presumption of
innocence is an integral part of the right to a fair trial.
Accordingly, opinions and information relating to on-going criminal
proceedings should only be communicated or disseminated through the
media where this does not prejudice the presumption of innocence of
the suspect or accused.
The provision of information about suspects, accused or
convicted persons or other parties to criminal proceedings should
respect their right to protection of privacy in accordance with
Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and
convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their
identification may have on the persons referred to in this
Principle.”
- On
4 October 2007 the Parliamentary Assembly of the Council of Europe
adopted Resolution 1577 (2007), Towards decriminalisation of
defamation, in which it urged those member States which still
provide for prison sentences for defamation, even if they are not
actually imposed, to abolish them without delay.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE
CONVENTION
- The
applicants complained that they had been convicted of a crime in
violation of Article 7 of the Convention and that their right to
freedom of expression under Article 10 of the Convention had been
violated in respect of the articles published in February 2002.
- Article
7 of the Convention, which reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
- 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 these arguments.
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicants
- The
applicants noted that the first article on 2 February 2002 had been
purely an account of a court trial. The article had described the
judgment of the Forssa District Court in a neutral manner commonly
used when reporting trials. It was undisputed that the account of the
trial had been based on facts, that the events reported and comments
quoted in the article had been based on the public case file, that
the reporting had not compromised the prerequisites of a fair trial
and that the trial had been public. There had been no reasons
relating to the trial itself why reporting should have been
restricted. The second article was a commentary on legal policy
similar to a newspaper column. No names had been mentioned in that
article. The information provided in the article had been based on
public events which had come to light during the trial, and on public
facts which could be found in official documents.
- At
the time of the publication of the articles, national legislation had
contained no provision criminalising the publication of public
information, nor had any such provision been laid down in national
legislation to this date. The internal Guidelines for Journalists had
laid down clearly more stringent requirements than the legislation in
force at the time. The Guidelines had, however, been prepared for the
sole purpose of the industry's self-regulation and could not be used
as a basis for criminal or tort liability. Such liability could only
be based on law.
- The
applicants argued, under Article 7 of the Convention, that Finnish
law contained no provision which defined reporting of a public trial
as a punishable offence. At the time of the publication of the
articles, it had been unforeseeable and surprising to the applicants
that penal sanctions could be imposed on them for having published
public information that had been freely available to everybody and to
which anyone could have had access on the basis of Article 12,
paragraph 2, of the Constitution of Finland. The published
information remained even today freely available. The interference
with the applicants' freedom of expression had thus not been
foreseeable or “prescribed by law”.
- The
applicants maintained that nor had the interference been “necessary
in a democratic society”. The press had the right and
obligation to distribute information and thoughts about all issues of
public interest and concern. A journalist was entitled to the
protection safeguarded by Article 10 of the Convention at least
in circumstances in which the journalist was distributing public
information that was both correct and reliable. Journalistic ethics
required a journalist to tell readers what was going on in society.
This requirement was of particular significance with regard to the
reporting of trials as trial accounts fostered the openness of court
proceedings and was at the very core of the freedom of expression.
Trials, and especially the already delivered court decisions, had to
be reportable in the media.
- The
applicants noted that the facts in the present case had in all
respects been based on public official documents. There could be no
pressing social need to prevent such reporting. Quite the contrary;
the openness of court proceedings was in fact achieved through the
media. Trial reporting was of great importance to society and it was
the core mission of freedom of expression. The information reported
in the article had previously been published in a newspaper of wide
circulation and in a pre-election book published at the time by the
presidential candidate. The information had already been freely
available to the public, it had been public and it had remained
freely accessible to anyone. The Government had not put forward any
“pressing social need” to interfere with the applicants'
freedom of expression. Finding the applicants guilty of an offence
and ordering them to pay damages was not proportionate in relation to
the acceptable aims for restricting freedom of expression.
(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 measures be “prescribed by law”
the Government pointed out that the impugned measures had had a basis
in Finnish law, namely in Articles 8, 10 and 12 of the Constitution
and, in particular, in Chapter 24,
section 8, of the Penal Code. Even if the Penal Code provision in
question had only been in force for about one and a half years at the
time of the events, already the earlier provision of the Penal Code,
which had been in force for 25 years, together with the preparatory
works, had described the concept of private life and had guided the
interpretation of the said provision. The earlier provision had been
interpreted by the Supreme Court on several occasions prior to the
publication of the impugned article. The rules on criminal liability
could thus be regarded as having been gradually clarified through
judicial interpretation in a manner which had been consistent with
the essence of the offence. There had been no greater difficulties in
the application of the said provision, although the boundary between
the protection of private life and the freedom of expression had been
sought here more clearly than in the application of other provisions
of the Penal Code. The general nature of the provision had allowed
for its flexible application in line with social developments as well
as the balancing of the freedom of expression and the protection of
private life. According to the Court's case-law, the consequences
which a given act may entail did not have to be foreseeable with
absolute certainty as this was unattainable. Consequently, in the
Government's view, the relevant domestic law had been precise enough
in order for the applicants to be able to foresee, to a degree that
was reasonable in the circumstances of the present case, the
consequences which their action would entail.
- Moreover,
the Government noted that the right to have access to public
information did not entail that public information was always
publishable. The Guidelines for Journalists and the practice of the
Council for Mass Media both regulated also publication of information
concerning one's private life. The Council had stated that the
conduct of a well-known person appearing in the public connected to
his or her professional tasks or public role did not as such belong
to such person's protected private life. On the contrary, information
concerning lifestyle did normally belong to such person's sphere of
private life. The applicants should have understood that the
publishing of all information contained in public documents had not
been automatically permissible and that the name of a victim of a
crime could not be automatically published either. Accordingly,
the interference had been foreseeable and “prescribed by law”
as required by Articles 7 and 10 § 2 of the Convention.
Moreover, the legitimate aim had been to protect the private life of
O.T., namely the reputation and rights of others.
- The
Government maintained that the interference had also been “necessary
in a democratic society”. It was undisputed that the
information published concerned O.T.'s private life and that she had
not been a public figure within the meaning of Chapter 24, section 8
of the Penal Code. In any event, the private life of public
officials, politicians or actors in business life was not
automatically public but could be revealed if necessary in dealing
with a socially important matter. The Supreme Court had noted in its
precedent case KKO 2005:82 that O.T. had not been a public
official but an assistant in elections of a political candidate. The
political motivations connected to her recruitment could not be
considered to entail that protection of her private life would become
narrower. The extra-marital relationship had not, at any rate, had
any impact on O.T.'s capacities to perform her function as a
communications expert for the election campaign. In any event, at the
time of the publication of the articles in question in 2002, O.T. had
no longer been in a similar position to that during the presidential
elections campaign in 2000. O.T.'s appearance with P.N. in public
places had not reduced the protection of her privacy nor could it be
considered as tacit consent to the disclosure of such information.
The articles could have been written without mentioning O.T. by name
or referring to other information on her private life.
- As
to the fines imposed, the Government argued that they had been
moderate. The damages and the costs the applicants had been ordered
to pay to O.T. had also been reasonable. Bearing in mind the margin
of appreciation, the Government argued that the interference in the
present case had been “necessary in a democratic society”.
2. The Court's assessment under Article 10 of the
Convention
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 constituted an
interference with their right to freedom of expression, as guaranteed
by Article 10 § 1 of the Convention.
2. Whether it was prescribed by law and
pursued a legitimate aim
- As
to whether the interference was “prescribed by law”, the
applicants argued that, at the time of the events or even currently,
the national legislation contained no provision criminalising the
publication of public information and that they had not therefore
been able to foresee that criminal sanctions could be imposed on them
for having published details of a public judgment. The Government
argued that the scope of criminal liability had gradually been
clarified through judicial interpretation in a manner which had been
consistent with the essence of the offence and with good journalistic
practice, and that Chapter 24, section 8, of the Penal Code had
been precise enough in order for the applicants to be able to
foresee, to a degree that was reasonable in the circumstances of the
present case, the consequences which their action had entailed.
- The
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter 24, section 8, of the
Penal Code. The parties' views, however, diverge as far as the scope
and foreseeability of the said provision are concerned. The Court
must thus examine whether the provision in question fulfils the
foreseeability requirement.
- The
Court has already noted that a norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
individual to regulate his conduct: he must be able - if need be with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable. Again, whilst certainty is
highly desirable, it may entail excessive rigidity and the law must
be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are a
question of practice (see Sunday Times v. the United Kingdom (no.
1), 26 April 1979, § 49, Series A no. 30 and mutatis
mutandis Kokkinakis v. Greece, 25 May 1993, § 40, Series
A no. 260-A).
- As
concerns the provision in question at the relevant time, Chapter 24,
section 8, of the Penal Code, the Court has already found in the
Eerikäinen case (see Eerikäinen and Others v.
Finland, no. 3514/02, § 58, 10 February 2009), in which
the earlier provision of the Penal Code was at stake, namely that of
Chapter 27, section 3(a), that it did not discern any ambiguity as to
its contents: the spreading of information, an insinuation or an
image depicting the private life of another person which was
conducive to causing suffering qualified as invasion of privacy.
Furthermore, the Court notes that the exception in the second
sentence of the earlier provision concerning persons in a public
office or function, in professional life, in a political activity or
in another comparable activity is equally clearly worded (see
Flinkkilä and Others v. Finland,
no. 25576/04, § 66, 6 April 2010). The
Court finds that the content of Chapter 24, section 8,
of the Penal Code corresponds to the
old Chapter 27, section 3(a), of the Penal Code as the amendments and
clarifications made to the existing provision have been mainly
technical (see and compare Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 42, ECHR 2007 XI).
- While
at the time when the articles in question were published, in February
2002, there were five Supreme Court decisions concerning the
interpretation of the provisions in question, all of which concerned
different aspects of private life, the Court finds that the
possibility that a sanction would be imposed for invasion of private
life was not unforeseeable. Even though there was no precise
definition of private life in the preparatory works (see government
bills HE 84/1974 and HE 184/1999),
these works mentioned that the necessity of mentioning a person's
name or other description of a person enabling identification was
always subject to careful consideration. Had the applicants had
doubts about the exact scope of the provision in question they should
have either sought advice about its content or refrained from
disclosing O.T.'s identity. Moreover, the applicants, who were
professional journalists, could not claim to be ignorant of the
content of the said provision since the Guidelines for Journalists
and the practice of the Council for Mass Media, although not binding,
provided even more strict rules than the Penal Code provision in
question.
- The
Court concludes therefore that the interference was “prescribed
by law” (see Nikula v. Finland, no. 31611/96, § 34,
ECHR 2002-II; Selistö v. Finland, no. 56767/00, § 34,
16 November 2004; Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 43, ECHR 2004-X; Eerikäinen
and Others v. Finland, cited above, § 58; and Flinkkilä
and Others v. Finland, cited above, §
68, 6 April 2010). In addition, it has not been disputed that
the interference pursued the legitimate aim of protecting the
reputation or rights of others, within the meaning of Article 10 §
2.
3. Whether the interference was necessary
in a democratic society
- According
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2 of Article 10 of
the Convention, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2 which must, however, be strictly construed. The
need for any restrictions must be established convincingly (see, for
example, Lingens v. Austria, 8 July 1986, § 41, Series A
no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 43, ECHR 1999-VIII).
- The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
- The
Court's task in exercising its supervision is not to take the place
of national authorities but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant
to their power of appreciation (see, among many other authorities,
Fressoz and Roire v. France [GC], no. 29183/95, § 45,
ECHR 1999-I).
- In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks made by the applicants and the context in
which they made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
(see Sunday Times v. the United Kingdom (no. 1), cited above
§ 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).
This duty extends to the reporting and commenting on court
proceedings which, provided that they do not overstep the bounds set
out above, contribute to their publicity and are thus consonant with
the requirement under Article 6 § 1 of the Convention that
hearings be public (see Egeland and Hanseid v. Norway, no.
34438/04, § 49, 16 April 2009). Not only do the media have the
task of imparting such information and ideas, the public also has a
right to receive them (see, Sunday Times v. the United Kingdom
(no. 1), cited above, § 65). In addition, the Court is
mindful of the fact that journalistic freedom also covers possible
recourse to a degree of exaggeration, or even provocation (see Prager
and Oberschlick v. Austria, 26 April 1995, § 38, Series A
no. 313, and Bladet Tromsø and Stensaas, loc.
cit.).
- The limits of permissible criticism are wider as
regards a politician than as regards a private individual. Unlike the
latter, the former inevitably and knowingly lay themselves open to
close scrutiny of their words and deeds by journalists and the public
at large, and they must consequently display a greater degree of
tolerance (see, for example, Lingens v. Austria, cited above,
§ 42; Incal v. Turkey, 9 June 1998, § 54, Reports
of Judgments and Decisions 1998 IV; and Castells v.
Spain, 23 April 1992, § 46, Series A no. 236).
- The
Court reiterates that civil servants acting in an official capacity
are, like politicians, subject to wider limits of acceptable
criticism than is the case of private individuals. However, it cannot
be said that civil servants knowingly lay themselves open to close
scrutiny of their every word and deed to the same extent as
politicians and should therefore be treated on an equal footing with
the latter when it comes to the criticism of their actions (see
Nikula v. Finland, cited above, § 48).
- The
freedom of expression has to be balanced against the protection of
private life guaranteed by Article 8 of the Convention. The concept
of private life covers personal information which individuals can
legitimately expect should not be published without their consent and
includes elements relating to a person's right to their image. The
publication of a photograph thus falls within the scope of private
life (see Von Hannover v. Germany, no. 59320/00, §§
50-53 and 59, ECHR 2004 VI).
- In
the cases in which the Court has had to balance the protection of
private life against freedom of expression, it has stressed the
contribution made by photographs or articles in the press to a debate
of general interest (see Tammer v. Estonia, no. 41205/98, §§
59 et seq., ECHR 2001-I; New Verlags GmbH & Co. KG
v. Austria, cited above, §§ 52 et seq.; and
Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96,
§§ 33 et seq., 26 February 2002). The Court thus
found, in one case, that the use of certain terms in relation to an
individual's private life was not “justified by considerations
of public concern” and that those terms did not “[bear]
on a matter of general importance” (see Tammer, cited
above, § 68) and went on to hold that there had not been a
violation of Article 10. In another case, however, the Court attached
particular importance to the fact that the subject in question was a
news item of “major public concern” and that the
published photographs “did not disclose any details of [the]
private life” of the person in question (see Krone Verlag
GmbH & Co. KG, cited above, § 37) and held that
there had been a violation of Article 10.
- Turning
to the facts of the present case, the Court notes that the first and
second applicants were convicted on the basis of disclosure of
private details made in the articles in their capacity as a
journalist or as editor-in-chief and that they, together with the
applicant company, were ordered to pay damages and costs.
- The
Court observes at the outset that the first article of 2 February
2002 summarised the judgment of 1 February 2002 of the Forssa
District Court and that it included O.T.'s full name, the court's
sentence and the description of the court proceedings together with
some of the same details about O.T.'s private life already published
in the original article of 3 February 2000. The second article
of 10 February 2002 reproduced the content of the original article
without mentioning any names, made a reference to the trial and went
on to discuss the legal framework surrounding the Penal Code section
concerning invasion of privacy.
- The
Court notes that these facts were presented in an objective manner.
There is no evidence, or indeed any allegation, of factual
misrepresentation or bad faith on the part of the applicants. Nor is
there any suggestion that details about O.T. were obtained by
subterfuge or other illicit means (compare Von Hannover v.
Germany, cited above, § 68). The facts set out in the
articles in issue were not in dispute even before the domestic
courts.
- The
Court notes that, in the context of the case Saaristo and Others
v. Finland, it has already found that O.T. had been politically
active in local politics and that her recruitment to the presidential
election campaign had attracted political interest. Even though she
could not be considered a civil servant or a politician in the
traditional sense of the word, she had not been a completely private
person either. Due to her function in the presidential election
campaign, she had been publicly promoting the goals and objectives of
one of the presidential candidates by belonging to his inner circle
and by being therefore visible in the media during the campaign. The
Court considered that, when taking up her duties as a communications
officer for one of the two presidential candidates, she must have
understood that her own person would also attract public interest and
that the scope of her protected private life would become somewhat
more limited. The impugned article had had a direct bearing on
matters of public interest, namely the on-going presidential election
campaign. Moreover, the fact that P.N.'s ex-spouse had
conducted election debates on television prior to the publishing of
the article, and that the article had apparently been politically
motivated and intended to affect the campaign, were also of relevance
in this respect. Taking into account that the article had been
published during the presidential election campaign and had thus been
closely linked to it in time, the Court considered that the article
did not only satisfy the curiosity of certain readers but it also
contributed to an important matter of public interest in the form of
political background information. The Court thus found a violation of
Article 10 of the Convention (see Saaristo and Others v. Finland,
12 October 2010, §§ 66-67).
- The
Court notes that the same information was repeated in the articles
now at stake. As the Court has already found a violation in this
respect in the Saaristo and Others v. Finland case, it
sees no reason to judge differently in the present case. The only
relevant difference was that the article in that case was published
two years earlier. However, the Court notes that the information
about O.T.'s private life was already available to the public and
might already have been known to a large number of people (see
Fressoz and Roire v. France [GC], cited above, § 53).
There was thus no need to prevent the disclosure of that information
again. For the Court, it is also of importance that the article was
based on public court proceedings and on a district court judgment
which was a public document (see Eerikäinen and Others v.
Finland, cited above, § 64). The district court did not
declare its judgment secret at any point of time (see paragraph 30
above). In addition, there is no indication that the reporting in
question would have disclosed any new private information about O.T.
(see and compare Principle 8 in the Appendix to Recommendation
Rec(2003)13 of the Committee of Ministers to member States on the
provision of information through the media in relation to criminal
proceedings, quoted at paragraph 50 above; and Egeland and Hanseid
v. Norway, cited above, § 60).
- As
regards the second article, the Court notes that O.T.'s name was not
mentioned and that it took the form of a commentary on legal policy.
Thus, the article was very much in the public interest.
- Finally,
the Court has taken into account the severity of the sanctions
imposed on the applicants. The first and second applicants were
convicted under criminal law and were ordered to pay, in respect of
both articles, ten day-fines, amounting to EUR 740 and EUR 1,140
respectively. In addition, they were, together with the applicant
company, ordered to pay damages jointly and severally to O.T. in a
total amount of EUR 6,000 plus interest and her legal fees amounting
to EUR 11,845.95 plus interest and EUR 2,623 plus interest, in total
EUR 27,150.08. The amounts of compensation must be regarded as
substantial, given that the maximum compensation afforded to victims
of serious violence was approximately FIM 100,000 (EUR 17,000) at the
time (see paragraph 34 above).
- The
Court would observe in this connection that, in view of the margin of
appreciation left to Contracting States, a criminal measure as a
response to defamation cannot, as such, be considered
disproportionate to the aim pursued (see Lindon,
Otchakovsky-Laurens and July v. France [GC], cited above, §
59, 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, in the Finnish
legal system, 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 points out 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 (see Długołęcki
v. Poland, no. 23806/03, §
47, 24 February 2009). 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). For the Court,
similar considerations should apply to infringements of privacy which
arise in circumstances such as those in the instant case (see
Saaristo and Others v. Finland, cited above, § 69).
- The
Court considers that such severe consequences, viewed against the
background of the circumstances resulting in the interference with
O.T.'s right to respect for her private life, were disproportionate
having regard to the competing interest of freedom of expression.
- In
conclusion, in the Court's opinion the reasons relied on by the
domestic courts, although relevant, were not sufficient to show that
the interference complained of was “necessary in a democratic
society”. Moreover, the totality of the sanctions imposed were
disproportionate. Having regard to all the foregoing factors, and
notwithstanding the margin of appreciation afforded to the State in
this area, the Court considers that the domestic courts failed to
strike a fair balance between the competing interests at stake.
- There
has therefore been a violation of Article 10 of the Convention.
3. The Court's assessment under Article 7 of the
Convention
94. In
view of the finding under Article 10 of the Convention that the
interference was in accordance with the law, the Court finds that
there has been no violation of Article 7 of the Convention in the
present case.
II. REMAINDER OF THE APPLICATION
- The
applicants also complained under Article 6 of the Convention about
the excessive length of their proceedings.
- The
Court notes that the applicants' proceedings lasted some five years
and nine months at three levels of jurisdiction. In the light of the
criteria laid down in its case-law and having regard to all the
circumstances of the case, the Court concludes that the overall
length of the proceedings was not excessive and thus satisfied the
reasonable time requirement under Article 6 § 1 of the
Convention. Accordingly, this part of the application is manifestly
ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed EUR 29,030.08 in respect of pecuniary loss,
consisting of damages and legal costs paid to O.T. in the amount of
EUR 27,150.08 and of the fines in the amount of EUR 1,880.
- The
Government noted that the pecuniary damages had been paid by the
applicant company in its capacity as an employer. The applicants had
not submitted all receipts or clarifications regarding the payment of
the amounts claimed under this heading or on the interest paid. They
left it to the Court's discretion to decide whether the applicants
had submitted sufficient documents to support their claims.
- The
Court finds that there is a causal link between the violation found
and the pecuniary damage alleged and that, consequently, there is
justification for making an award to the applicants under that head.
The Court notes that the pecuniary damages had been paid by the
applicant company in its capacity as an employer. Having regard to
all the circumstances and to the documents in its possession, Court
awards the applicant company the sum claimed in full.
B. Costs and expenses
- The
first applicant also claimed EUR 9,000 and the applicant company EUR
17,011.74 for the costs and expenses incurred before the domestic
courts and an unspecified amount of compensation for those incurred
before the Court.
- The
Government considered that the applicants had not submitted
sufficient specification of the costs and expenses, as required by
Rule 60 of the Rules of Court, as the measures performed, hours used
for each measure or the cost for each measure had not been specified.
In addition, the applicants had not submitted any details of the
costs and expenses incurred before the Court. They left it to the
Court's discretion to decide whether the details provided had been
sufficient. The fact that the Article 6 complaint had not been
communicated to the Government should also be taken into account. In
any event, the Government found the applicants' claims excessive as
to quantum and considered that the total amount of compensation for
costs and expenses incurred before the domestic courts should not
exceed EUR 2,000 (inclusive of value-added tax) in respect of the
first applicant and EUR 5,000 (inclusive of value-added tax) in
respect of the applicant company. The total amount of compensation
for costs and expenses incurred before the Court should not exceed
EUR 1,000 (inclusive of value-added tax) for all applicants.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
rejects the first applicant's claim for costs and expenses in the
domestic proceedings as well as the applicants' claim for costs and
expenses before the Court for lack of substantiation. The Court
considers it reasonable to award the applicant company the sum of EUR
8,000 (inclusive of value-added tax) for costs and expenses incurred
in the domestic proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 7 and 10
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there has been no violation of
Article 7 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant company, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts:
(i) EUR
29,030.08 (twenty-nine thousand and thirty euros and eight cents),
plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
8,000 (eight thousand euros), plus any tax that may be chargeable to
it, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 25 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza Deputy Registrar President
