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FOURTH
SECTION
CASE OF SAARISTO AND OTHERS v. FINLAND
(Application
no. 184/06)
JUDGMENT
STRASBOURG
12 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Saaristo 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,
David Thór
Björgvinsson,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 21 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 184/06) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Finnish nationals, Ms Satu Sirkku Saaristo
and Mr Hannu Tapani Savola, and a Finnish newspaper company,
Ilta Sanomat Oy (“the applicants”), on 28
December 2005. The second applicant Mr Savola died on 13 February
2007. However, his children Mr Hans Mikael Savola and Ms Saana
Johanna Savola expressed their wish to pursue the application. For
practical reasons Mr Hannu Tapani Savola will continue to be called
“the second applicant” in this judgment.
- 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 their right to freedom of
expression under Article 10 of the Convention had been violated.
- On
23 June 2008 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was born in 1946 and lives in Kerava. The second
applicant was born in 1949 and was resident in Helsinki at the time
of his death. The applicant company is based in Helsinki. The first
applicant is a journalist and the second applicant was the
editor-in-chief of the newspaper called Ilta-Sanomat which was
published at the time of the events by the publishing company Sanoma
Osakeyhtiö. On 1 January 2005 Sanoma Osakeyhtiö transferred
all its business relating to the publishing of Ilta-Sanomat,
including court cases, to the applicant company. The newspaper has a
circulation of approximately 200,000.
- On
3 February 2000, during the presidential election campaign, the
applicant company published a short article, written by the first
applicant and approved by the second applicant, entitled “The
ex-husband of [R.U.] and the person in charge of communications for
the Aho campaign have found each other”.
- The
article stated that P.N., who had separated from his wife, had found
a new partner, O.T. P.N.'s wife 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 Aho 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 Finnpro,
the 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
13 March 2000 O.T. asked the police to investigate the matter. She
requested compensation for suffering and distress and for financial
losses.
- On
4 July 2001 the public prosecutor brought charges against the
applicants under Chapter 27, section 3(a), of the Penal Code. O.T.
concurred with the charges and pursued a compensation claim against
all the applicants, which was joined to the criminal charges.
- On
1 February 2002 the Forssa District Court (käräjäoikeus,
tingsrätten) convicted the applicants for having violated
O.T.'s private life. The first applicant was sentenced to a fine of
270 euros (EUR) and the second applicant to a fine of EUR 650. The
applicants were jointly ordered to pay damages to O.T. for suffering
amounting to EUR 5,045.64 and her legal fees and witness costs
amounting to EUR 6,500, both sums with interest.
- The
court found that O.T., despite her position in the presidential
campaign, was not a public figure and that her relationship with P.N.
was not such that the applicants would have been allowed to write
about it without her consent. The information published, however
accurate, was not necessary for examining any matter of interest to
society.
- The
applicants appealed to the Turku Court of Appeal (hovioikeus,
hovrätten) claiming that, due to her position in the
presidential campaign and as a local politician, O.T. was a so-called
public figure, that the facts in the article were true and that the
issue was important for public discussion since one of the main
focuses of the presidential campaign was family values. O.T. worked
for a candidate who was a married father of four children, in
contrast to the other candidate, who was a single mother cohabiting
without being married. Hence, O.T.'s extramarital affair was of
importance to the public. The affair had been public, thus
information about it could not be private. The information was
connected to O.T.'s public function and was necessary in order to
discuss an important matter for society.
- Following
an oral hearing on 12 November 2002, the Court of Appeal upheld the
District Court's judgment on 12 December 2002. It found that the
information published had had no importance for society but only
served the general curiosity of the public.
- On
3 February 2003 the applicants appealed to the Supreme Court (korkein
oikeus, högsta domstolen), reiterating the grounds of appeal
already presented before the Court of Appeal.
- On
7 October 2003 the Supreme Court granted the applicants leave to
appeal.
- On
4 July 2005 the Supreme Court upheld the Court of Appeal's judgment
as far as the applicants were concerned and ordered them jointly to
pay O.T.'s legal fees amounting to EUR 2.415,60 plus interest. It
found, inter alia, the following:
“... The Supreme Court states that information
concerning emotional relationships, dating and family life
undoubtedly fall within the scope of private life and even its core
areas.
...
Evaluation of the content of the article
The Supreme Court states that the
contents of the article do not support the defendants' allegation
that the purpose of the article was to describe the political
co-operation between O.T. and P.N. The expressions used in the
article, according to which O.T. and P.N. “found each other”
and “P.N. has found a new partner”, together with the
disclosure in the same connection of P.N.'s divorce and that O.T. was
a mother, are not conducive to creating a conception of political
co-operation, but it is obvious that the intention was to refer to a
personal love affair. Even though the article does mention O.T.'s and
P.N.'s political affiliations and O.T.'s function in the presidential
election campaign, there is nothing else political in the article.
Nor when viewed as a whole, the article does not give an impression
that it aimed to tell about a relationship that was politically
important. Its crucial aim had clearly been to spread information
about an intimate relationship of public persons.
Significance of O.T.'s function
...
The Supreme Court states that O.T.
has served at the relevant time a politically important function
which involved publicity and because of which her person as an
official in the presidential candidate's inner circle has attracted
justified interest. Another question is, however, whether O.T.'s
position has been such that also issues relating to her private life
could have been revealed in public without her consent.
...
O.T has served the campaign as a hired expert without
herself pursuing political office or other public function. As put
forward by the defendants, O.T.'s appointment as the person in charge
of communications had probably been affected, in addition to her
professional merits, by considerations of a political nature. This
does not, however, change the fact that in spite of some other former
political positions of trust occupied by her, O.T. was not known as a
politician prior to being employed in the electoral campaign nor has
she, after having become a temporary campaign assistant, stood as a
candidate for any political office. ..... O.T. was not a civil
servant but an assistant to a political candidate. Nor does it follow
from the political considerations of her recruitment that,
considering the nature of the campaign, the protection of her private
life would for this reason have become similarly restricted as in
respect of the politician she was assisting.
O.T.'s function as an official of the presidential
campaign was not, either, the kind that would have made her obliged
in her private life to stand for or become committed to the values
advanced by the candidate. Even if the communication between O.T. and
P.N. could also have had professional content and significance as to
O.T.'s function, the intimate nature of the relationship had nothing
to do with that aspect of the matter. The extra-marital relationship
was not, at any rate, a consideration that would have had an impact
on O.T.'s capacities to perform her function as a communications
expert hired for the election campaign. .... The
consideration mentioned by O.T. that the reason behind the
publication of the article would have been to affect the campaign,
has no relevance to whether the defendants have been guilty of
violating O.T.'s private life. The offender's possible political
motivation or O.T.'s assumption about it have no relevance to the
justification of the act in case there were no legal grounds for
disclosing information concerning private life.
On the above-mentioned grounds the
Supreme Court considers that the disclosure in the media of an
extra-marital relationship of a person in O.T.'s position or exposure
in public of the morals of her private life was not justified by the
public's need to receive information nor by the important interests
of society. There was thus no legal right to disclose information
about O.T.'s private life in the article on the basis of her
functions.
Significance of the position of other persons
mentioned in the article
...
As mentioned in the preparatory
works for Chapter 24, section 8, of the Penal Code, the restrictions
on the protection of private life on the basis of a person's position
or function only applies to that person him or herself. Even though
it would be permissible to write about the private life of a
politician or a performing artist, this cannot be extended to such
person's relatives, acquaintances or other outsiders (HE 184/1999
vp, p. 32). The Supreme Court states that P.N.'s position and the
fact that his ex-spouse was known from the television are not issues
that could change the above-mentioned conclusion and justify such
publication of information about O.T.'s private life like in the
present case.
Nor has the fact that P.N.'s
ex-spouse had conducted election debates on television prior to the
publishing of the article had any relevance. Even though it is
possible that such personal scenario, which is completely irrelevant
vis-à-vis
the presidential candidates, interests certain public circles more
than the content of the election debates and the candidates' own
performance, such satisfying of curiosity is not a fact that would
have justified the publishing of information about O.T.'s private
life. There was thus no legal right to disclose information about
O.T.'s private life on this ground either.
Claim that the relationship was
known of by outsiders
The defendants have also claimed
that O.T.'s and P.N.'s close relationship had been open and visible
to outsiders, and that it was known among politicians. The Supreme
Court states that the protection of private life is not only limited
to facts or events that take place in private or in closed events.
The fact that an issue of private life is noticeable in a certain
event or in public places does not mean as such that it would be left
outside the protection of private life (see for example the European
Court of Human Rights' judgment in the case Peck
v. United Kingdom, judgment of
28 January 2003, §§ 62-63; and the judgment in
the case von Hannover,
in which the pictures found to violate private life were mostly taken
in public places). The contrary can also be true if the persons
involved clearly show by their behaviour that they want to make the
issue public.
Moreover, the Supreme Court states
that the fact that a piece of information about private life has come
to the knowledge of a certain group of persons through their own
observations or private gossiping is not a ground that would permit
distribution of that information through the media to a wider public
without the consent of the person concerned. Publication of such an
article in the media is conducive to causing harm and suffering to
the person concerned and to his or her close ones, just as O.T. has
described.
... In the present case it has not
been shown that O.T., by being with P.N. at the same events or in
public places, would have meant their relationship to be public or
that information about it should be freely distributable. O.T. cannot
be regarded as having performed in a manner that could lead to the
conclusion that she, even implicitly, would have given her consent to
the distribution of the information written in the article.
Conclusions
On the basis of the above-mentioned, the Supreme Court,
like the lower instances, has come to the conclusion that the
publication of the article violated O.T.'s private life. The act was
intentional, a fact which has not even been contested before the
Supreme Court. [The first and second applicants] have thus been
guilty of invasion of private life, as already held by the lower
courts. .....”
- The
outcome of the Supreme Court's judgment was not unanimous, one of the
Justices gave a dissenting opinion. According to him, and taking into
account the direct effect of the Strasbourg Court's judgments, the
exceptions to Chapter 27, section 3(a), of the Penal Code had to be
interpreted extensively, both regarding the extent of the political
activity and the scope of a matter of interest to society. O.T.'s
recruitment to the presidential election campaign had attracted
political interest due to the fact that her party political
background was different from that of the candidate she was
assisting. There had been public speculation that, by her
appointment, her candidate had tried to attract voters from her party
and especially female voters. Even though it could not be said that
O.T. had, by taking part in the election campaign, become a public
figure, she must have understood that, as an important figure in the
inner circle of one of the two candidates, she would also attract
public interest. O.T. had thus been politically active and this
activity had been public. As to the article, the Justice noted that
the information about O.T.'s private life, even if not strictly
relevant to her functions as the communications official, was
conducive to contributing to public debate through the fact that
family values had been at the centre of the political value debate in
the presidential campaign. The article did not only satisfy the
curiosity of certain readers but it also contributed to an important
matter of public interest as political background information. One
could rely on criminal law sanctions in a case of political
journalism only exceptionally, namely if freedom of expression was
clearly abused. As this was not so in the present case, the Justice
did not consider the publication of the article as a punishable act
and would have annulled the previous judgments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitutional provisions
- Article
12 of the Constitution of Finland (Suomen perustuslaki, Finlands
grundlag, Act no. 731/1999) 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.”
- 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, telephone 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.”
B. Penal Code
- Chapter
27 (as amended by Act no. 908/1974), section 3(a), of the Penal Code
(rikoslaki, strafflagen) read, at the relevant time, as
follows:
“A person who unlawfully, through the use of the
mass media or in another similar manner, publicly disseminates
information, an insinuation or an image depicting the private life of
another person, such as to cause him or her damage or suffering,
shall be convicted of invasion of privacy and sentenced to a maximum
term of imprisonment of two years or to a fine. A publication that
deals with a person's behaviour in a public office or function, in
professional life, in a political activity or in another comparable
activity, shall not be considered an invasion of privacy if the
reporting was necessary for the purpose of dealing with a matter of
importance to society.”
- In
the travaux préparatoires of the above-mentioned
provision (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, information
about that offence 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.
- In
2000, Chapter 27, section 3(a), of the Penal Code was replaced by
Chapter 24, section 8, (Act no. 531/2000, which entered into force on
1 October 2000). Under the new provision on injury to personal
reputation (yksityiselämää loukkaavan tiedon
levittäminen, spridande av information som kränker
privatlivet) a person who unlawfully, through the use of the mass
media or in another manner, publicly spreads information, an
insinuation or an image of the private life of another person in such
a way that the act is conducive to causing that person damage or
suffering or subjecting that person to contempt, shall be convicted
of injuring personal reputation. However, an act shall not constitute
an injury to personal reputation if it concerns the evaluation of
that person's activities in a professional or public capacity and if
it is necessary for the purpose of addressing a matter of importance
to society.
24. According
to the travaux
préparatoires
(see government bill HE 184/1999), the content of the new
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. 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. 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). With
regard to the concept of private life, a reference is made to the
explanatory works concerning the Constitution's provisions on
fundamental rights and to the government bill HE 84/1974. 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).
C. 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.
D. Supreme Court practice
- 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 present
case. An 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 identify 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.
E. 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).
- 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 one's lifestyle can be closely
connected to his or her professional tasks in a way that its
publishing 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
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 ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their right to freedom of expression had
been violated. Article 10 of the Convention reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
(a) The applicants
- The
applicants argued that freedom of expression had a special
significance in matters relating to political and social discussion
and that this term had to be interpreted expansively. It should be
extremely exceptional to interfere with the freedom of expression
relating to political activity. It should be possible only when there
was a clear misuse of freedom of expression.
- The
applicants stressed that the content of the impugned article had
mainly been political and that it had concerned the Finnish
presidential election campaign. The article had aimed to have an
impact on public discussion and the information contained in it had
been of public interest. The journalists had acted in good faith and
the information had been correct and in accordance with the ethics of
journalism. There had been no compelling reasons to interfere with
the applicant's freedom of expression. No just balance between the
freedom of expression of the applicants and the protection of private
life had been found. The actions of the national courts had been
conducive to preventing the free flow of information and free
discussion of issues relating to political activity. There had thus
been a violation of Article 10 of the Convention.
(b) The Government
- The
Government agreed that the conviction of the first and second
applicants and the obligation to pay damages and costs had amounted
to an interference with their right to freedom expression.
- As
to the requirement that measures be “prescribed by law”
the Government pointed out that the applicants had not contested
this. In any event, 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 27, section
3(a), of the Penal Code. At the relevant time the Penal Code
provision had been in force for more than 20 years and it 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. The liability therefore could reasonably
have been foreseen.
48. Moreover,
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. Accordingly, the interference had been
“prescribed by law” as required by Article 10 § 2 of
the Convention. Moreover, the legitimate aim had been to protect the
private life of O.T., that was, 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 was
not a public figure within the meaning of Chapter 27, section 3(a),
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 that
O.T. was not a public official but an assistant in elections of a
political candidate. The political motivations connected to her
recruiting 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.
The purpose of the impugned article had not been to make a political
commentary but simply to satisfy readers' curiosity.
- The
Government pointed out that P.N.'s position in the organisation and
his marriage to the person hosting the election debate had been in
itself a piece of information of social importance but it had had no
relevance to the present case. The provision limiting the protection
of private life applied only to persons in a position of importance
to society and not to persons belonging to his or her inner circle.
O.T.'s appearance with P.N. in public places did not reduce the
protection of her privacy nor could it be considered as tacit consent
to the disclosure of such information. The article had thus invaded
O.T.'s privacy.
- 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
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
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter
27, section 3(a), of the Penal Code.
The Court has already found on several occasions that
this provision did not suffer from any ambiguity as to its contents
(see, for example, Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 43, ECHR 2004 X, Eerikäinen
and Others v. Finland, no. 3514/02, §
58, 10 February 2009; and Flinkkilä and
Others v. Finland, no. 25576/04, §
68, 6 April 2010). The Court concludes therefore that the
interference was “prescribed by law”. 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). 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, no. 31611/96, § 48, ECHR
2002 II).
- 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; News 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 and fined on the basis of the
remarks made in the article 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, in the article of 3 February 2000
in Ilta-Sanomat, O.T.'s name, function in the election
campaign as well as her civilian job, together with the fact that she
was a mother, were mentioned in the article. Moreover, it was
mentioned that she was the new companion of P.N. The article, which
also included a photograph of O.T., was entitled “The
ex-husband of [R.U.] and the person in charge of communications for
the Aho campaign have found each other”.
- 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
article in issue were not in dispute even before the domestic courts.
- The
Court notes 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
as a civil servant or a politician in the traditional sense of the
word, she was not 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 considers 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. On this
point, the Court disagrees with the assessment made by the majority
in the Supreme Court of O.T.'s status. For the Court, the majority
did not give sufficient weight to the political nature of her
functions and to the public context in which she discharged these
functions.
- The
Court observes in this connection that the impugned article had a
direct bearing on matters of public interest, namely the presidential
election campaign. Moreover, the facts 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 are also of relevance
in this respect. Taking into account that the article was
published during the presidential election campaign and was thus
closely linked to it in time, the Court considers that, unlike in the
Von Hannover case, 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 (compare and contrast Von Hannover v. Germany,
cited above, § 76).
- Finally,
the Court has taken into account the severity of the sanctions
imposed on the applicants. It notes that the first and second
applicants were convicted under criminal law and observes that they
were ordered to pay ten day-fines, amounting to EUR 270 and EUR 650
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 5,045.64 plus interest and her legal fees and
witness costs amounting to EUR 6,500 plus interest and to EUR
2.415,60 plus interest. 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 28 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], nos. 21279/02
and 36448/02, § 59, ECHR 2007-..., Radio France and Others v.
France, no. 53984/00, § 40, ECHR 2004-II and Rumyana
Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February
2008). Nevertheless, 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 by a
public prosecutor (like in other Finnish cases, see for example
Niskasaari and Others v. Finland, no. 37520/07, § 77,
6 July 2010 and Ruokanen and Others v. Finland, no.
45130/06, § 50, 6 April 2010) 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.
- The
Court considers that such 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.
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
applicants claimed EUR 14,900.24 in respect of pecuniary damage, that
was, EUR 920 for the fines, EUR 5,045.64 for damages paid to O.T.,
and EUR 6,500 for O.T.'s legal costs and witness costs in the
District Court and EUR 2.415,60 for those in the Supreme Court.
- The
Government noted that the pecuniary damages had been paid by the
publishing company Sanoma Osakeyhtiö, which was party to the
domestic proceedings. However, the payment receipt did not correspond
to the total amount of pecuniary damage claimed. The applicant
company was not party to the domestic proceedings.
- 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.
Having regard to all the circumstances, the Court awards the
applicants jointly the sum claimed in full.
B. Costs and expenses
- The
applicants also claimed EUR 27,245.62 for the costs and expenses
incurred before the domestic courts and EUR 12,200 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 hours used or the total cost
for each measure performed had not been specified. They left it to
the Court's discretion whether the specification provided had been
sufficient. The applicant's claims also included postage, telephone
and copying costs which were already included in counsel's fee.
Moreover, the payment receipt by Sanoma Osakeyhtiö did not
correspond to the total amount of costs and expenses claimed. The
Government found the applicants' claims too high as to quantum
and considered that, in any event, the total amount of compensation
for costs and expenses for all applicants should not exceed EUR 7,500
(inclusive of value-added tax) with respect to the proceedings before
the domestic courts and EUR 4,000 (inclusive of value-added tax) with
respect to the proceedings before the Court.
- 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 considers it reasonable to award the sum of EUR 13,000
(inclusive of value-added tax) covering costs under all heads.
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 application admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- 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
14,900.24 (fourteen thousand nine hundred euros and twenty-four
cents) to the applicants jointly, plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
13,000 (thirteen thousand euros) to the applicants jointly, plus any
tax that may be chargeable to them, 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 12 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
