EHRM, 16-03-2017, nr. 58493/13

The applicant submitted that the statements alleging sexual offences had been directed at a public figure, as confirmed by the Supreme Court. A had been a candidate for the Constitutional Assembly and information about the character of the candidate had been of public interest and should be imparted to the public. Furthermore, there had been an ongoing debate in Iceland about the issue of sexual offences, in particular against children, and society's reaction to such offences. The issue had therefore been socially important and of public interest in general.

The applicant maintained that the news articles had been drafted in accordance with journalistic standards and in good faith. The journalist who had written the articles had sought information on the background to the allegations and the reliability of the accusers. He had talked to the person against whom the allegations had been made, the sisters, a third woman who had also claimed to be a victim, the sisters' relatives, the authorities and one of the sisters' employers. Pressan had kept its distance from the content of the statements made by the sisters and clearly referred to them as allegations, thus avoiding presenting them as facts. The accused person had been given an opportunity to comment, and his rejection of the allegation had been reported. Furthermore, his views about the allegation expressed in other media had also been reported by Pressan.

The applicant also maintained that the information had already been publicly available on the internet and had been widely disseminated. The statements in the news articles had either been based on an interview with one of the sisters or on the content available on the sisters' webpage, which was accepted by the District Court.

In the Government's opinion, the impugned restrictions on the applicant's exercise of freedom of expression had corresponded to a pressing social need and had been justified by relevant and sufficient reasons, namely A's reputation and honour. The measures taken had been proportionate to the legitimate aim pursued.

The Government claimed, inter alia, that the statements published by the applicant had been deemed to be facts and therefore the Icelandic courts had enjoyed a greater margin of appreciation in restricting his freedom of expression. The Government agreed with the applicant that A, as a candidate for general elections, was to be considered a public person and that persons running for election had to suffer greater scrutiny, but also considered that such persons were not stripped of their constitutional rights. The statements had not been a necessary contribution to a public debate and had resulted in unlawful accusations against A.

The Government pointed out that although journalists and the media played a key role in communicating information in democratic societies, the Court had previously acknowledged that while journalists did indeed have a great deal of freedom to fulfil that role, they also had certain responsibilities. The Supreme Court had found that the applicant had not relied on sufficiently reliable sources for the published statements. He had failed to abide by the journalistic duties identified by the Court and to prepare the material in ‘good faith’. The Supreme Court had balanced the opposing interests in the case and there had been a pressing social need to restrict the applicant's freedom of expression.

The amount of compensation imposed on the applicant had been fully consistent with the recognised practice of the Icelandic courts and in no particular way onerous for the applicant. It had been foreseeable and proportionate. Finally, the ‘penalty’ imposed had been in the form of compensation for non-pecuniary damage under the Tort Act, as opposed to criminal sanctions under the Penal Code.

The principles concerning the question whether an interference with freedom of expression is ‘necessary in a democratic society’ are well established in the Court´s case-law (see, among other authorities, Delfi AS v. Estonia [GC], no. 64569/09, § 131 to 132, ECHR 2015, with further references). Furthermore, the Court has addressed the distinction between the internet, as an information and communication tool, and the printed media (see, among other authorities, Delfi AS v. Estonia, § 133, cited above, Węgrzynowski and Smolczewski v. Poland, no. 33846/07, § 58, 16 July 2013, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011 (extracts) and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009).

Having been required on numerous occasions to consider disputes requiring an examination of the fair balance to be struck between the right to respect for private life under Article 8 and the right to freedom of expression, the Court has developed general principles emerging from abundant case-law in this area (see, among other authorities, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 83 to 93, ECHR 2015 (extracts)).

In particular, it will be recalled that in order for Article 8 to come into play, an attack on a person's reputation must attain a certain level of seriousness and its manner must cause prejudice to personal enjoyment of the right to respect for private life. The criteria which are relevant when balancing the right to freedom of expression against the right to respect for private life are: the contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed (see, for example, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 83 and 89 to 95, 7 February 2012 and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108 to 113, ECHR 2012).

The Court notes, as observed by the Supreme Court in its judgment of 21 February 2013, that the impugned statements in the articles published on Pressan consisted of an insinuation that A was guilty of child abuse, an offence punishable under the Penal Code. Under Article 241 of the Penal Code, the Supreme Court declared the statements null and void. The Court sees no cause to question the Supreme Court's assessment that the allegations were defamatory or that the reasons relied on by that court had the legitimate aim of protecting A's rights and reputation.

The Court will proceed to examine whether those reasons were sufficient for the purpose of Article 10. As to the issue of whether or not the articles concerned an issue of public concern, the Court observes that A was a candidate for the Constitutional Assembly, which was a gathering of twenty-five members elected by general election, having the purpose of making proposals for a new Icelandic Constitution. Furthermore, the issue of sexual violence against children is a serious topic which is of public interest. The Court thus agrees with the applicant that the general public had a legitimate interest in being informed about A´s running for general election and of such serious matters as child abuse.

As to the question of how well-known the applicant was and the subject matter of the report, the Court considers that, by running for office in general elections, A must be considered to have inevitably and knowingly entered the public domain and laid himself open to closer scrutiny of his acts. The limits of acceptable criticism must accordingly be wider than in the case of a private individual (see, inter alia, Couderc and Hachette Filipacchi Associés v. France, cited above, §§ 117 to 123 and Erla Hlynsdόttir v. Iceland, no. 43380/10, § 65, 10 July 2012, with further references).

The Court notes that neither the domestic courts nor the parties commented on A's prior conduct.

As regards the method of obtaining the information in the present case and its veracity, the Court finds that there were no special grounds to dispense the media from their ordinary obligation to verify factual statements that are defamatory of private individuals. It will consider the impugned articles as a whole, having particular regard to the words used in the disputed parts of the articles and the context in which they were published, as well as the manner in which they were prepared. The Court must examine whether the applicant acted in good faith and made sure that the articles were written in compliance with ordinary journalistic obligations to verify factual allegations. This obligation requires the journalist to rely on a sufficiently accurate and reliable factual basis which can be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis has to be (see, inter alia, Björk Eiðsdóttir v. Iceland, no. 46443/09, § 71, 10 July 2012).

In the present case the Court accepts that the journalist tried to establish the sisters' credibility and the truth of the allegations by interviewing several relevant persons, inter alia, the sisters, A's son, the police, one of the sisters' employers, another alleged victim and other people mentioned in the sisters' writings. The journalist also tried to interview the child protection services, but without success (see paragraph 14 above)

It is further observed that in the articles containing the impugned statements, and in other articles published by Pressan on the same topic at the same time, the sisters' interviews and allegations were presented with certain counter-balancing elements, in that the journalist who wrote the articles offered A an opportunity to comment on the sisters' allegations. A responded by denying the allegations and by stating that he would not discuss the matter further. The journalist tried to contact A in relation to later articles, but without success. However, in later articles published by Pressan on the matter, A's response, denying the allegations, was reported. Furthermore, in an article published on 8 November 2011 A's response to the allegations which had been published by another newspaper Vísir, was reported and in an article published on 22 February 2011, parts of a television interview with A's daughter on the subject were reported (see paragraphs 7 – 10 above).

The Court further reiterates that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see, among other authorities, Saygılı and Falakaoğlu v. Turkey, no. 39457/03, § 23, 21 October 2008), and that ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’ (see, for example, Delfi AS v. Estonia, cited above, § 135).

In these circumstances, being aware that the applicant was the editor, not the journalist, the Court considers that the applicant acted in good faith and made sure that the article was written in compliance with ordinary journalistic obligations to verify a factual allegation.

As to the content, form and consequences of the impugned statements, the Court notes in the first place that, according to the findings made by the Supreme Court, the impugned statements consisted of insinuations about A being a child abuser and, under Article 241 of the Penal Code, the Supreme Court declared the statements null and void as stated above. The Court agrees that those allegations were of such nature and gravity as to be capable of causing harm to A's honour and reputation.

On the other hand, it is clear that the disputed statements did not originate from the applicant himself nor from the journalist who wrote the articles, but from the sisters. They had, already in 2008, written a letter containing part of the allegations and sent this to their extended family, the police and the child protection services. They had published that letter and all the impugned statements on their own website before the articles were published on Pressan. As it appears in the domestic courts' findings, the quotations under items A-C and D in paragraph 12 were a verbatim rendering of the sisters' statements in their letter, on their website and from their interviews with the journalist who had written the articles. Furthermore, they later confirmed that their statements had been accurately quoted and published with their consent (see paragraphs 15 and 18 above).

In so far as the applicant's conviction may have been in the legitimate interest of protecting A against the impugned defamatory allegations made by the sisters, that interest was, in the Court's view, largely preserved by the possibility open to him under Icelandic law to bring defamation proceedings against the sisters. The Court regards it as significant that A opted to institute proceedings against the applicant editor only. It refers in this respect to the fact that A's lawyer sent a letter to the sisters offering to settle the case, failing which defamation proceedings would be brought against them. However, according to the sisters' statements before the domestic courts, A never brought court proceedings against them. In these circumstances, it may be open to question whether the applicant was afforded a real opportunity to absolve himself of liability by establishing that he had acted in good faith and, in the case of factual allegations, by ascertaining their truth.

As regards the severity of the penalty imposed, the Court notes that the defamation proceedings brought by A against the applicant ended in an order by the Supreme Court declaring the statements null and void and requiring the applicant to pay to A ISK 200,000 in compensation for non-pecuniary damage under the Tort Act, plus interest, and ISK 800,000 for A's costs before the domestic courts. Although the compensation was not a criminal sanction, and the amount may not appear harsh, the Court reiterates that in the context of assessing proportionality, irrespective of whether or not the sanction imposed was a minor one, what matters is the very fact of judgment being made against the person concerned, even where such a ruling is solely civil in nature. Any undue restriction on freedom of expression effectively entails a risk of obstructing or paralysing future media coverage of similar questions (see, for example, Couderc and Hachette Filipacchi Associés v. France, cited above, § 151).

In the light of all the above-mentioned considerations, the Court considers that the arguments of the domestic courts, although relevant, cannot be regarded as sufficient to justify the interference in issue. In assessing the circumstances submitted for their appreciation, the Supreme Court did not give due consideration to the principles and criteria as laid down by the Court's case law for balancing the right to respect for private life and the right to freedom of expression. It thus exceeded the margin of appreciation afforded to it and failed to strike a reasonable balance of proportionality between the measures imposed, restricting the applicant's right to freedom of expression, and the legitimate aim pursued.

The Court therefore concludes that there has been a violation of Article 10 of the Convention.