In the case of Ristamäki and Korvola v. Finland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele,
President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Vincent A. De Gaetano,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section
Registrar,
Having deliberated in private on 8 October 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
66456/09) 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 Juha Arvo Mikael Ristamäki
and Mr Ari Jukka Korvola (“the applicants”), on 15 December 2009.
The applicants were represented by Mr Markku Hiekkala,
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.
On 28 March 2011 the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1969 and 1953 and
live in Espoo and Helsinki respectively.
The first applicant is an editor and the second
applicant is his immediate superior. Both applicants are employed by a Finnish
broadcasting company.
On 27 February 2006 the company broadcast on a
national TV channel a current affairs programme criticising the lack of
co-operation between the authorities concerning a specific investigation into
economic crime. It was revealed that the tax authorities had refused the
request of the National Bureau of Investigation (keskusrikospoliisi,
centralkriminalpolisen) to conduct a tax inspection of the functioning of
two companies running a certain sports centre. Reference was made in that
connection, inter alia, to K.U., a well-known Finnish businessman who,
at the time, was standing trial for economic offences. In the programme it was
stated that the police wanted to know whether the sports centre had been
purchased using K.U.’s money.
The programme was broadcast anew on the following
day. Then the programme included an addition from K.U.’s business partner who
indicated that the money spent on the sports centre had in fact come from an
insurance company, not from K.U.
On 10 December 2007 the public prosecutor initiated
criminal proceedings against both applicants. He maintained that the first
applicant, by editing the programme, and the second applicant, by allowing its
broadcast, had intentionally and in concert made false insinuations about K.U.
such that their conduct had been conducive to causing the latter suffering,
subjecting him to contempt and causing him damage. A similar accusation was
made against the broadcasting company’s editor-in-chief who had, along with the
second applicant, allowed the second broadcast of the programme. As the false
insinuations had been disseminated through the mass media to a large public,
and as this had caused K.U. great suffering, the defendants should be convicted
for aggravated defamation.
K.U., for his part, claimed compensation for
mental anguish and legal costs in the same proceedings.
The applicants contested the charge and the
civil claim. They argued, inter alia, that all information imparted had
been correct. There had been no false insinuations about K.U., nor any criminal
intent on behalf of the applicants. The programme had dealt with an issue of
general importance, that is, problems of co-operation between the police and
the tax authorities.
On 9 May 2008 the Helsinki District Court (käräjäoikeus,
tingsrätten) issued its judgment. In its reasons the court found it
established that the first applicant had edited the programme, broadcast on 27
and 28 February 2006. The programme had reached some 750,000 viewers. It
had been announced as a report on the termination of tax inspections of the
affairs of a person in a high position and his friend.
The court went on to note that at the beginning
of the programme footage was shown of the criminal trial concerning K.U.’s
alleged economic offences shot on the same day, that is, 27 February 2006. It
was followed by a diagram illustrated by K.U.’s photograph and indicating:
“National Bureau of Investigation → [K.U.] → [K.U.’s] business
associate → Sports centre.” While these images were shown on the screen
the narration ran as follows:
“The Helsinki District Court continued today the examination of
an extensive trial concerning economic crime. One of the accused was the
businessman [K.U.], with previous convictions for economic offences. He is
being charged with having concealed from his creditors millions of his assets.
There are nine other defendants who have allegedly hidden [K.U.’s] assets
around the world. The National Bureau of Investigation worked for years on this
money laundering case, which is probably the largest of its kind in Finland.
Now it has come to light that spanners were thrown into the works of the [K.U.]
investigation from unexpected quarters. In 2001 one of [K.U.’s] close associates
decided to invest in the sports business. He bought himself into a sports
centre in Helsinki and became its managing director. The National Bureau of
Investigation became interested in whose money was used in the purchase. [K.U.’s]
associates’ own assets would not have been sufficient to acquire the sports
centre. The National Bureau of Investigation asked the tax authorities to
conduct a tax inspection of the companies running the centre. The police wanted
to know whether it had been purchased using [K.U.’s] money.”
The court went on to summarise the programme
noting that:
“After this a criminal inspector explains that in November 2001
the National Bureau of Investigation lodged a written request with the tax administration
for tax inspection concerning two companies in the sports business and that,
according to the information acquired, such inspections were not carried out.
It was then noted in the programme that [this kind of omission] was very rare
in the co-operation between the police and the tax authorities and that this
was the only branch in the [K.U.] investigation, where the tax authorities
refused to co-operate with the police. It was also mentioned in the programme
that in 2001 the Uusimaa Tax Office (verovirasto, skatteverk) had, at
the request of the police, carried out inspections of the tax affairs of the
director general for the National Board of Patents and Registration (Patentti-
ja rekisterihallitus, Patent- och registerstyrelsen) and that in these
investigations the tax inspectors had [come across] the aforementioned sports
centre. It was deemed that a good friend and a business associate to the
director general had invested in the sports centre. In May 2001 the head of the
tax inspection unit had put the brakes on the investigation into the director
general’s affairs and called off the inspections of the companies running the
sports centre.
It was also mentioned in the programme that after the sports
centre came into the possession of [K.U.’s] friend, the National Bureau of
Investigation had asked the tax authorities to continue the inspections of the
companies running the sports centre but nothing happened. During the
investigations the director general of the National Board of Patents and
Registration and the tax commissioners attempted to hinder the tax inspectors’
work.
Finally, it is mentioned in the programme that if the
investigation concerning the sports centre had been continued because of
[K.U.], that might have again raised delicate issues concerning the friend of
the director general of the National Board of Patents and Registration and the
commission [he] was paid in connection with the change of office quarters of
the latter. But since nothing was done, nothing was found out. In this context,
the diagram with [K.U.’s] photograph was again shown.”
The District Court found it established that the
second applicant had been the first applicant’s immediate superior. He had read
the script and authorised its broadcast. The court noted that prior to the
rebroadcast of the programme K.U. had contacted the first applicant and
insisted that the part concerning him be removed. The court found it
established that the second applicant and the editor-in-chief had discussed
K.U.’s demand and decided not to accede to it. The court further found it
established that the second applicant had watched the programme before its
second broadcast. He had then decided that at the end of the rebroadcast the
announcer would inform the viewers that, in regard to the sports centre
coverage, K.U.’s business associate submitted that he had received the money
for the purchase from an insurance company and not from K.U.
The court also referred to a later broadcast on
6 March 2006 of the same series of current affairs programmes, which was a
follow-up to the above-mentioned programme. In that programme it was mentioned,
inter alia, that K.U.’s business associate, who had been a shareholder
in the company which purchased the sports centre in 2000, had presented the
contracts concerning the purchase. It transpired from those contracts that the
sports centre, and its debts, had been purchased with a loan granted by an
insurance company. According to the business associate, K.U.’s money had not
been invested in the sports centre.
In its assessment the District Court observed
that there was nothing to suggest that the information contained in the
programme broadcast on 27 and 28 February 2006 had been false as such. It
went on to state:
“The District Court finds that the script of the programme and
the use of the footage from the trial concerning [K.U.’s] alleged economic
offences and the diagram concerning [K.U.] taken together create an impression
that [K.U.] had made himself guilty of a crime by investing his assets in the
sports centre business. It has not been asserted directly that [K.U.] had
committed an offence. The programme was structured around [K.U.] On the above
grounds the District Court finds that a false insinuation was made concerning
[K.U.] in the programme broadcast on 27 and 28 February 2006, giving the
impression that [he] had committed an offence by using assets concealed from
his debtors for the purchase of the sports centre.
The addition made to the rebroadcast on 28 February 2006 does
not exclude the false insinuation that [K.U.’s] money has ended up in sports
centre business.
Defamation is only punishable where there is criminal intent.
The defendants have not shown that they had strong grounds or probable reasons
to believe that the false insinuation was accurate. The addition made to the
rebroadcast, and the programme of 6 March 2006, indicate that [K.U.’s] money
had not been used to finance the sports centre. It follows that further
information concerning the insinuation had been available and it could have
been verified. The defendants are responsible for the programme and the false
insinuation contained therein. They must have considered it very likely that
the programme contained a false insinuation aimed at [K.U.]. That insinuation
concerns a serious act and sufficiently strong factual grounds are to be
expected.
This kind of false insinuation implying that [K.U.] has
committed an offence has been conducive to causing him suffering and damage and
to subjecting him to contempt.
The exercise of freedom of expression, or the fact that [K.U.]
is a public figure, does not justify the false insinuation given by the
defendants.
The defendants have stressed that the programme concerned
co-operation between the authorities. The District Court considers that
presenting [that issue] would not have required connecting [K.U.] to the
matter.
Whether the broadcast was deliberately or by chance scheduled
on the same day as [K.U.’s] criminal trial is not relevant in this case.
The District Court finds that the [first and second] defendants
have, in the above described manner, intentionally disparaged [K.U.’s] honour. ...”
The District Court lastly found that, having
regard to the nature and content of the false insinuation and the fact that
K.U. had, at the time, been charged with a similar economic offence, the
defendants were not guilty of aggravated defamation. It convicted all
defendants of [regular] defamation pursuant to Chapter 24, section 9, subsection
1, point 1, of the Penal Code. The applicants were sentenced to 30 day-fines
each, amounting to a total of 810 euros (EUR) and EUR 1,230 respectively. They
were also ordered to pay to K.U., jointly and severally with the third
defendant, EUR 1,800 for suffering and EUR 1,500 in legal costs.
The District Court was composed of one
professional judge and three lay judges. One of the lay judges was in favour of
an acquittal.
The applicants and the third defendant appealed
against the judgment to the Helsinki Court of Appeal (hovioikeus,
hovrätten) maintaining, inter alia, that the District Court
had given too little weight to the fact that the information given in the
programme had been accurate. The programme had not focused on K.U. but on the
problems of co-operation between the authorities, which was an issue of major
general importance. The defendants also contested the lower court’s view that
it would have been possible to report on the issue without making any
connection to K.U. At the time of the broadcasting, K.U. and a number of other
persons had been charged with serious economic offences. The problems of
co-operation between the authorities reported in the programme had occurred in
the investigation of that very case. The defendants further contested the lower
court’s finding of criminal intent and that K.U. had sustained damage.
On 30 December 2008 the Court of Appeal
dismissed the appeal. It upheld the lower court’s judgment without giving any
further reasons of its own.
On 16 December 2009 the Supreme Court (korkein
oikeus, högsta domstolen) refused the applicants leave to appeal.
II. RELEVANT DOMESTIC LAW
The Finnish Constitution (Suomen
perustuslaki, Finlands grundlag, Act no. 731/1999) provides in
relevant parts:
“Section 10 - The right to privacy
Everyone’s private life, honour and the sanctity of the home
are guaranteed. ...
...
Section 12 - Freedom of expression and right of access to
information
Everyone has the freedom of expression. Freedom of expression
entails the right to express, impart 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. ...”
Chapter 24, section 9, subsections 1 and 2, of
the Penal Code (rikoslaki,
strafflagen; Act no. 531/2000) provide:
“A person who
1) gives false information or makes 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) disparages another person in a manner other than referred to
in point 1
shall be convicted of defamation and sentenced to a fine or
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
comparable public activity, and which does not clearly overstep the limits of
what can be considered acceptable, does not constitute defamation as set out in
point 2 of paragraph 1.”
. Chapter 24, section 10, of the Penal Code provides that if, in
the defamation referred to in section 9, the offence is committed through the
use of 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 at most two years.
Chapter 5, section 6, of the Tort Liability Act
(vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974, as
amended by Act no. 509/2004) provides that a person may be awarded compensation
for suffering if, inter alia, his or her liberty, peace, honour, or
private life has been violated through a punishable act. In assessing the level
of that suffering the nature of the violation, the status of the victim, the
relationship between the offender and the victim as well as the possible public
exposure of the violation are to be taken into account.
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE
CONVENTION
The applicants complained about a violation of their
right to freedom of expression as provided in Article 10 of the Convention,
which 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 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
The applicants maintained that there had been an
interference with their right to freedom of expression. Even though the
domestic law allowed such an interference, it had not been necessary in a
democratic society. The applicants considered that it was not only the media’s
right but also its duty towards citizens to disclose a problem of public
interest such as the lack of cooperation between the police and the tax authorities
in the present case. In the television programme two separate cases were
discussed which had both attracted considerable publicity. It was unusual that
in those cases the tax authorities had declined the police’s request to conduct
a tax inspection, and this issue was revealed in the programme. It was
undisputed that the information in the programme had been true and correct.
The applicants claimed that the national courts
had arrived at erroneous conclusions in the present case. The applicants had
learned from the police themselves about the issue and they had considered this
source reliable. The applicants had been acting in good faith and there was no
intention to defame on their part. The national courts concluded that the
programme contained no allegation of K.U. being guilty of a crime but a
deliberate insinuation that he had invested funds in an activity to the
detriment of his creditors. It would not have been possible to criticise the
tax authorities’ conduct without introducing the two cases which were separate
but linked. It had been precisely in these two cases that the cooperation
between the authorities had failed. After having received new information about
the financing, this information was duly introduced in the rebroadcast of the
programme. The applicants maintained that the domestic courts had failed to
strike a proper balance between the competing interests.
(b) The Government
The Government agreed that the applicants’
conviction, the fines imposed on them and the obligation to pay costs and
damages to K.U. constituted an interference with their right to freedom of
expression under Article 10 of the Convention. The Government agreed with the
applicants that the impugned measures had had a basis in Finnish law, in
particular in Chapter 24, section 9, of the Penal Code. The interference had also
had a legitimate aim, namely the protection of the private life of others.
As to whether the interference was necessary in
a democratic society, the Government pointed out that the general
subject-matter of the television programme in question, namely the cooperation problems
between the police and the tax authorities, could be considered a matter of
general public interest. There had thus been justified grounds to support the
need to encourage public discussion of the matter in general. However, the
applicants had not been convicted for having alerted the public to this issue
but for having indirectly alleged that K.U. was guilty of an offence, which had
to be considered as defamation. A large number of persons had become aware of
the programme. Even though the applicants could have been convicted of aggravated
defamation for this reason, the District Court did not find their offence to be
aggravated as a whole. Even though the applicants had on 28 February 2006 added
to the programme that the money in question had come from an insurance company
and not from K.U., the District Court found that such an addition did not make
good the fact that a false insinuation had been made in the first broadcast. The
applicants had ignored K.U.’s request to remove the parts concerning him, and they
had continued making an indirect allegation. They had not verified the facts before
the first broadcast or between the two broadcasts even though they had had a
possibility to do so.
In the Government’s view the television programme
as a whole gave an impression that K.U. was possibly guilty of a crime. The
message conveyed by the programme did not in any way require K.U.’s photograph to
be shown or his name to be mentioned. The applicants had admitted before the
Court of Appeal that K.U. had not been the subject of the programme but alleged
now in their observations to the Court the contrary. The whole programme had
been structured around K.U. The District Court considered that the applicants
had to consider it very likely that the programme contained a false insinuation
aimed at K.U. and that the applicants had thus acted with intent. The
applicants had not sought judicial advice on the advisability of publishing
K.U.’s name and photograph before the first broadcast or even after K.U. had
contacted them after the first broadcast. Even though K.U. could be considered
a public figure, that fact did not justify making a false insinuation about
him. As to the penalties, the Government noted that the sanction had been modest
and considerably smaller than in some other previous cases. The interference
was thus not disproportionate to the legitimate aim pursued, and a fair balance
had been struck between the competing interests.
2. The Court’s assessment
(a) Whether there was an interference
The Court agrees that the applicants’ conviction
and the award of damages and costs constituted an interference with their right
to freedom of expression, as guaranteed by Article 10 § 1 of
the Convention.
(b) Whether it was prescribed by law and pursued a
legitimate aim
The Court notes that, according to the
Government, the impugned measures had a basis in Finnish law, namely in Chapter 24, section 9, of the Penal Code.
Moreover, the interference complained of had a legitimate aim, namely the
protection of the private life of others.
The applicants did not dispute this.
The Court notes that freedom of expression is
subject to the exceptions set out in Article 10 § 2 of the
Convention. The Court accepts that the interference was based on Chapter 24,
section 9, of the Penal Code, as in force at the relevant time. It was thus
“prescribed by law” (see Nikula
v. Finland, no. 31611/96, § 34, ECHR 2002-II; Selistö
v. Finland, no. 56767/00, § 34, 16 November
2004; Karhuvaara
and Iltalehti v. Finland, no. 53678/00, § 43,
ECHR 2004-X; and Eerikäinen
and Others v. Finland, no. 3514/02, § 58, 10 February 2009) and it pursued the legitimate aim of protecting
the private life of others, within the meaning of Article 10 § 2.
(c) 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 applicant and the
context in which she 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 v. Austria,
cited above, § 40; Barfod
v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski v. Poland, 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 v.
Denmark, 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, 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 1998-IV;
and Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Similar
considerations apply also to persons in the public eye (see Fayed v. the
United Kingdom, 21 September 1994, § 75, Series A no. 294-B; Steel
and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II;
and contrast with Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004-VI;
and MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011). In certain circumstances, even where a person is known to the
general public, he or she may rely on a “legitimate expectation” of protection
of and respect for his or her private life (see Von Hannover v.
Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 97, ECHR 2012).
. Moreover,
the Court has recently set out the relevant principles to be applied when
examining the necessity of an instance of interference with the right to
freedom of expression in the interests of the “protection of the reputation or
rights of others”. It noted that in such cases the Court may be required to
verify whether the domestic authorities struck a fair balance when protecting
two values guaranteed by the Convention which may come into conflict with each
other in certain cases, namely, on the one hand, freedom of expression
protected by Article 10 and, on the other, the right to respect for private
life enshrined in Article 8 (see Axel Springer AG v. Germany [GC],
no. 39954/08, § 84, 7 February 2012; and MGN Limited v. the United Kingdom, cited above, § 142).
. In
Von Hannover v. Germany (no. 2) [GC] (cited above, §§ 104-107) and Axel
Springer AG v. Germany [GC] (cited above, §§ 85-88), the Court defined the Contracting
States’ margin of appreciation and its own role in balancing these two
conflicting interests. The relevant paragraphs of the latter judgment read as
follows:
“85. The Court reiterates
that, under Article 10 of the Convention, the Contracting States enjoy a certain
margin of appreciation in assessing whether and to what extent an interference
with the freedom of expression guaranteed under that provision is necessary
(see Tammer v. Estonia, no. 41205/98, § 60, ECHR 2001-I, and Pedersen and Baadsgaard, cited
above, § 68).
86. However, this margin goes
hand in hand with European supervision, embracing both the legislation and the
decisions applying it, even those delivered by an independent court (see Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 38, ECHR 2004-X, and Flinkkilä and Others, cited
above, § 70). In exercising its supervisory function, the Court’s task is not
to take the place of the national courts, but rather to review, in the light of
the case as a whole, whether the decisions they have taken pursuant to their
power of appreciation are compatible with the provisions of the Convention
relied on (see Petrenco v. Moldova, no. 20928/05, § 54, 30 March 2010; Polanco Torres and Movilla Polanco, cited above, § 41; and Petrov
v. Bulgaria (dec.), no. 27103/04, 2 November
2010).
87. In cases such as the
present one the Court considers that the outcome of the application should not,
in principle, vary according to whether it has been lodged with the Court under
Article 10 of the Convention by the publisher who has published the offending
article or under Article 8 of the Convention by the person who was the subject
of that article. Indeed, as a matter of principle these rights deserve equal
respect (see Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.),
no. 28999/03, § 144, 12 October 2010; and Mosley
v. the United Kingdom, no. 48009/08, § 111, 10
May 2011; see also point 11 of the Resolution of the Parliamentary Assembly -
paragraph 51 above). Accordingly, the margin of appreciation should in
principle be the same in both cases.
88. Where the balancing
exercise between those two rights has been undertaken by the national
authorities in conformity with the criteria laid down in the Court’s case-law,
the Court would require strong reasons to substitute its view for that of the
domestic courts (see MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57,
12 September 2011).”
. The Court went on to identify a number of criteria
as being relevant where the right of freedom of expression is being balanced
against the right to respect for private life (see Von Hannover v. Germany (no. 2) [GC], cited above, §§ 109-113; and Axel
Springer AG v. Germany [GC], cited above, §§ 89-95), namely:
(i) contribution to a debate
of general interest;
(ii) how well-known is the
person concerned and what is the subject of the report;
(iii) prior conduct of the
person concerned;
(iv) method of obtaining the
information and its veracity/circumstances in which the photographs were taken;
(v) content, form and
consequences of the publication; and
(vi) severity of the sanction
imposed.
Turning to the facts of the present case, the
Court notes that the applicants were convicted of defamation in their capacity
as journalists, and that they were ordered to pay damages and costs to K.U.
The Court observes at the outset that the
impugned television programme focused on criticising the lack of co-operation
between the police and the tax authorities in two specific cases concerning
economic crime. It was revealed that the tax authorities had refused the
request of the National Bureau of Investigation to conduct a tax inspection
into the functioning of two companies running a certain sports centre.
Reference was made in that connection to K.U., a well-known Finnish businessman
who, at the time, was standing trial for economic offences.
The Court notes that in the programme it was
stated that the National Bureau of Investigation had asked the tax authorities
to conduct a tax inspection into the two companies running the centre as they wanted
to know whether it had been purchased using K.U.’s money. For the Court, this
is a pure statement of fact having no element of insinuation. The programme was
clearly aimed at disclosing a malfunctioning of the administration in two specific
cases which both involved influential persons. Both of these persons, including
K.U., were mentioned in the programme rather as examples but their role was not
decisive. The major part of the programme focused on the tax authorities.
The Court notes that the facts set out in the programme
in issue were not in dispute even before the domestic courts. In fact, the
District Court observed that there was nothing to suggest that the information
contained in the programme broadcast on 27 and 28 February 2006 had been false
as such. The Court notes that the facts in the programme were presented in an
objective manner and the style was not provocative or exaggerated. There is no
evidence, or indeed any allegation, of factual misrepresentation or bad faith
on the part of the applicants (see, in this connection, Flinkkilä and Others
v. Finland, no. 25576/04, § 81, 6 April
2010).
Moreover, the Court notes that, according to the
domestic courts, it was equally clear that K.U. had been, at the time the programme
was broadcast, already in the limelight. In fact he was standing trial for
economic crimes on the very day that the programme was first broadcast. There
is no suggestion that details of the programme or the photograph of K.U. were
obtained by subterfuge or other illicit means (compare Von Hannover
v. Germany, cited above, § 68). On the contrary, the programme was based on
information given by the police authorities and K.U.’s photograph was taken at
a public event.
In order to assess whether the “necessity” of
the restriction of the exercise of the freedom of expression has been
established convincingly, the Court must examine the issue essentially from the
standpoint of the relevance and sufficiency of the reasons given by the
domestic courts for convicting the applicants and for requiring them to pay
compensation and costs to K.U. The Court must determine whether the applicants’
conviction and the liability in damages and costs struck a fair balance between
the public and K.U.’s interests and whether the standards applied were in
conformity with the principles embodied in Article 10 (see Nikula v. Finland,
cited above, § 44).
The Court considers that the general subject matter
which was at the heart of the programme in question, namely the unsuccessful criminal
investigation of economic crime and the unwillingness of the tax authorities to
contribute to this investigation, was a matter of legitimate public interest.
This is particularly so as the applicants had wanted to expose a particular
problem in their programme, namely the lack of cooperation between the police
and the tax authorities in connection with two particular cases. From the point
of view of the general public’s right to receive information about matters of
public interest, and thus from the standpoint of the media, there were
justified grounds for reporting the matter to the public.
The Court observes that the domestic courts did
not, in their analysis, attach any importance to the applicants’ right to
freedom of expression, nor did they balance it in any considered way against
K.U.’s right to reputation. It is not clear in the reasoning of the domestic
courts what pressing social need in the present case justified protecting K.U.’s
rights over the rights of the applicants. Nor is it clear whether, according to
the domestic courts, the interference in issue was proportionate to the legitimate
aim pursued.
As to the rebroadcast on 28 February 2006, the
District Court found that the addition made to the rebroadcast did not remove
the false insinuation that K.U.’s money had ended up in sports centre business.
Assessing the programme and its rebroadcast as a whole, the Court finds that,
assuming that there was an insinuation in the first place, it was corrected
during the rebroadcast when K.U.’s business partner provided information that the
money did not come from K.U. but from an insurance company.
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”. 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The first applicant claimed EUR 1,910 and the
second applicant EUR 2,330 in respect of pecuniary damage.
The Government noted that even though the
above-mentioned sums had been imposed on the applicants by the domestic
judgments, the applicants had failed to provide any proof that those sums had
actually been paid by them. Accordingly, these claims should be rejected.
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.
Considering the domestic judgments as adequate proof of payment of the amounts
in question, the Court awards the applicants the full sums claimed.
B. Costs and expenses
The applicants also claimed EUR 4,236.48 for the
costs and expenses incurred before the Court.
The Government noted that the hourly rate used
was somewhat high. In the Government’s view the total amount of compensation
for costs and expenses should not exceed EUR 2,700 (inclusive of value-added
tax).
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the documents
in its possession and the above criteria, the Court considers it reasonable to
award the sum of EUR 3,500 (inclusive of value-added tax) for the proceedings
before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts:
(i) EUR 1,910 (one thousand nine hundred and ten euros)
in respect of the first applicant and EUR 2,330 (two thousand three hundred and
thirty euros) in respect of the second applicant, plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR 3,500 (three thousand five hundred euros),
plus any tax that may be chargeable to the applicants, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 29 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Ineta
Ziemele
Registrar President
