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FOURTH SECTION

Application no. 32297/10
Mikko Veli NISKASAARI and OTAVAMEDIA OY
against Finland
lodged on 11 June 2010

STATEMENT OF FACTS

THE FACTS

The first applicant, Mr Mikko Veli Niskasaari, is a Finnish national who was born in 1952 and lives in Helsinki. The applicant company, Otavamedia Oy, is a Finnish limited liability company which has its seat in Helsinki. They are represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The first applicant is a journalist for a weekly magazine, Seura, which is published by the applicant company.

On 16 March 1998 and 19 November 2001 respectively the Finnish national public service broadcasting company broadcast two TV documentaries in its MOT series which concerned mould-infested houses and the protection of forests. They were done by several reporters, including the complainant.

On 18, 19 and 23 March 2002 the first applicant criticised, on two separate internet discussion sites, the manner in which these two documentaries had been made. He said wrote, inter alia, that:

“[The complainant] is a fanatic warrior of the faith for whom facts are just in the way. He has indisputably been caught of cold, intentional lying.”

“[The complainant] in fact claimed that the house was healthy but that one cheating company doing mould inspections had managed to find some insignificant mould spots because of which a completely unnecessary court case was initiated. ... Contrary to [the complainant’s] assurances, N.N.’s former house was rotten. ... [The complainant] must have known that. He is thus lying cold-bloodedly and intentionally. ... He thus knew that [the expert] lied but he let it happen.”

On 31 May 2002 the first applicant published a four page article in Seura magazine on similar lines. The article had been approved by a lawyer before publication. The article included passages such as:

“[The complainant] claimed that over 10 percents of the Finnish forest area was already protected and that conservationists demanded that an additional 10-15 percent of the forest area in Southern Finland should be preserved. These figures are fabricated. ...

S.S. thus said in [the documentary] the complete opposite than what her research showed and what was stated in her grant application. When I interviewed [the complainant], he admitted that he had known about the grant and the 1993 research. Still he accepted S.S.’s clearly groundless testimony in the documentary.”

On 5 July 2002 Seura magazine published a two-page reply in which the reporters who had made the documentaries in question replied to the first applicant’s criticism. In response to this reply, the magazine published a page-long counter reply by the first applicant.

On 21 September 2002 the complainant reported the matter to the police, asking them to investigate whether the first applicant was guilty of defamation when he called him a liar in his writings. By letter dated 16 October 2002 the complainant presented his claim for damages against the applicants.

On 15 and 17 November 2002 the applicant company and the first applicant submitted their replies to the police. On 5 December 2002 the first applicant was questioned by the police for the first time.

On 23 April 2004 the public prosecutor pressed charges in the Espoo District Court (käräjäoikeus, tingsrätten) against the first applicant for defamation. The complainant concurred with the charges brought by the public prosecutor. The compensation claim presented by him already on 16 October 2002 was joined to the criminal charges. The applicants claimed that the Espoo District Court was not a competent court because the forum norms had changed in January 2004.

On 8 June 2005 the Espoo District Court found in an interlocutory decision that it was a competent court to decide the case. Even though the article in question had been written and the decision on its publication had been taken in Helsinki, the magazine had been printed and the consequences of the article had arisen in Espoo. As the internet articles concerned the same matter, the court was competent to examine them too.

On 26 January 2007 the Espoo District Court dismissed all charges against the first applicant and the compensation claim directed against the applicants. It found first of all that all the articles should be considered as the same matter because they concerned the same topic, irrespective of whether they had been published on internet or in the magazine. Both the first applicant and the complainant had had grounds for their views and they had not said anything that was clearly untrue. The documentaries made by the complainant had provoked public discussion but they had also, due to the manner in which they were presented, provoked hard criticism. Therefore the threshold for acceptable criticism of the complainant and his documentaries was higher than usual. As there had been insinuations in the documentaries that some of the expert opinions had been false, the first applicant was allowed to use similar wording vis-à-vis the complainant.

On an unspecified date the complainant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Appeal Court held oral hearings on 16 and 17 October and on 27 October 2008.

On 30 January 2009 the Appeal Court convicted the first applicant of defamation and sentenced him to 40 day-fines, in total 240 euros. He was ordered to pay 2,000 euros plus interest in damages to the complainant. The applicant company was ordered, together with the first applicant, to pay 4,000 euros plus interest in damages to the complainant as well as his costs and expenses of 25,500 euros plus interest in total. The court found first of all that the Espoo District Court had been a competent court in the matter. As to the merits, it found that it had not been proved that the complainant had given wrong or misleading information in the documentaries. The first applicant had not had strong reasons or probable cause to hold his accusations true. Nor had he a right to call the complainant a liar. In this respect he was found guilty of defamation. However, as concerned the rest of the articles, the first applicant had used exaggeration and provocation but had not given any wrong information. As his criticism had been directed against the documentaries rather than the person of the complainant, there had been no defamation in this respect.

By letter dated 31 March 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), claiming that all facts had been correct in the article published in Seura magazine. Moreover, during the oral hearing in the Appeal Court, the applicants had not been allowed to put questions to the opposing party’s witnesses whereas the opposing party could question their witnesses. Also the evidence provided by the applicants had not been adequately taken into account by the Appeal Court and the proceedings had taken place in the wrong forum.

On 11 December 2009 the Supreme Court refused the applicants leave to appeal.

B.  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, Article 9, paragraphs 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 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.

COMPLAINTS

The applicants complain under Article 10 of the Convention that their freedom of expression was violated. There was no legitimate reason to interfere with their freedom of expression and the interference was not necessary in a democratic society.

They complain under Article 6 § 1 and 6 § 3 (d) of the Convention that they were not allowed to put questions to the opposing party’s witnesses whereas the opposing party could question their witnesses. Also the evidence provided by the applicants was not adequately taken into account.

They complain under Article 6 § 1 of the Convention that the total length of the criminal proceedings against them is incompatible with the reasonable-time requirement.

Finally, the applicants complain under Article 6 § 1 of the Convention that the proceedings took place in the wrong forum.

QUESTIONS TO THE PARTIES

1.  Has there been an interference with the applicants’ right to freedom of expression, in particular their right to impart information and ideas, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

2.  Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?