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FOURTH
SECTION
CASE OF LAHTONEN v. FINLAND
(Application
no. 29576/09)
JUDGMENT
STRASBOURG
17
January 2012
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 Lahtonen v.
Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Päivi Hirvelä,
George
Nicolaou,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 13 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29576/09) 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 a Finnish national, Mr Mika Lahtonen (“the
applicant”), on 29 May 2009.
- The
applicant was represented by Mr Heikki Salo, 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
applicant alleged, in particular, that his freedom of expression had
been violated under Article 10 of the Convention.
- On
12 January 2010 the complaint under Article 10 of the Convention 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
applicant was born in 1970 and lives in Helsinki.
- The
applicant is a journalist and the editor-in-chief of a monthly
magazine called Alibi, which specialises in crime reporting
and has a circulation of approximately 32,000. The publisher of Alibi
is Yhtyneet Kuvalehdet Oy.
- On
29 July 2003 J., a police officer, stopped a person unknown to him on
the road and used his police identity card to take possession of the
person’s car for emergency reasons, as he put it. He then drove
off at high speed. After the car appeared to break down, J. tried to
acquire another vehicle in the same manner. The persons in the second
car turned out to be two police officers in civilian clothing, who
were monitoring the traffic. After having threatened the police
officers with violence, J. continued towards his destination. His
speed alternated between 160 and 185 km/h in a zone where the limit
was set at 80 and 100 km/h. At his destination, J. was apprehended by
the police and charged with stealing the vehicle and various other
offences.
- Soon
after his arrest, J. gave an exclusive interview, for a fee, to a
weekly magazine called 7-Päivää. His real name
was not revealed in the interview but his picture (face in profile)
was used and the article mentioned that he was, at the time,
undergoing involuntary treatment in a mental hospital. J. had also
offered an interview to Alibi (and the applicant) against
payment but the offer was refused by the applicant.
- On
3 February 2004, in the hearing before the District Court
(käräjäoikeus, tingsrätten), J. pleaded
guilty to most of the charges. The court ordered J., in accordance
with his own request, to undergo psychiatric examination to establish
whether he was, at the time, criminally responsible for his actions.
- In
the March 2004 edition of Alibi an article was published about
J. and his case. The article was written by the applicant. The
information in the article was based on the public court documents
acquired by the applicant from the District Court after the hearing
on 3 February 2004. The article included J.’s name, year of
birth, some background information about him and his current place of
work, details of the incident of 29 July 2003 and
information that J. had wished to undergo a psychiatric evaluation
before the court’s decision was made and that he had been
ordered to do so by the court.
- On
26 May 2004 the Mustasaari District Court found J. guilty of all
charges but, because he had been found not to have been criminally
responsible for his actions, the court waived the sentence.
- On
15 April 2004 J. lodged a complaint with the Finnish Council for Mass
Media (Julkisen sanan neuvosto, Opinionsnämnden för
massmedier) about the subject-matter of the case. On 18 August
2004 the Council found that the applicant had violated good
journalistic practice by publishing J.’s name and information
about his psychological examination. The Council gave the applicant a
warning.
- On
19 September 2004 J. requested the police to investigate whether the
applicant had committed an offence of “dissemination of
information violating private life” (yksityiselämää
loukkaavan tiedon levittäminen, spridande av information som
kränker privatlivet) on account of his article. J. also
requested the applicant to pay, in addition to his legal fees,
15,000 euros (EUR) in damages for mental suffering caused by the
article in question.
- On
31 December 2004 the public prosecutor decided not to prosecute as he
did not find proof or probable cause to support the indictment. He
found that a psychiatric assessment and the decision to order a
person to undergo such an assessment were integral parts of crime
reporting. No further comments about J.’s health had been made
in the article. Moreover, when balancing the freedom of expression
against the protection of privacy, he agreed that the latter required
non-disclosure of J.’s name. However, the reasons for
disclosing J.’s name, namely the fact that J. was a police
officer, the gravity of the charges against him and the need to clear
other local police officers, weighed heavier. No crime had thus taken
place.
- On
23 March 2005 J. lodged a complaint with the Prosecutor General
(valtakunnansyyttäjä, riksåklagaren) who on 20
July 2006 ordered charges to be brought against the applicant.
- On
15 June 2007 the District Court convicted the applicant of
dissemination of information violating private life and sentenced him
to pay 30 day-fines, a total of EUR 1,170, adjusted to his taxable
income. In addition, the applicant was ordered to pay J.’s
legal fees in the amount of EUR 5,896.21 plus interest. J.’s
claim for non-pecuniary damages was dismissed without examining the
merits as he had not directed his compensation claim against the
publisher of Alibi, Yhtyneet Kuvalehdet Oy, who bore
the primary responsibility according to the law. The court noted that
J. was an experienced police officer whose duties involved the
exercise of public power but that he was not of high rank. The crimes
had not been committed in office but had taken place during J.’s
free time. The judgments convicting J. as well as the information
about his lack of criminal liability and wish to undergo psychiatric
evaluation were public. However, all public information was not
necessarily publishable. The crimes committed by J. had been ordinary
and not very serious. On the other hand, the local interest in the
case had been so exceptional that it had been reasonable to write
about acts committed by J. and about his state of mind. The applicant
had been aware of the fact that J. had been mentally ill at the time
of the publication. The publication of J.’s name did not
strengthen the applicant’s journalistic message nor was it
well-founded in any other way. J.’s name had not been disclosed
in any other publication. The fact that J. had given an interview to
the press did not change the outcome of the applicant’s case as
J. had not been able to evaluate the repercussions of his actions due
to his mental illness.
- Following
the applicant’s conviction, various media published a story
about it, mentioning his name and profession. Some of them also
included the applicant’s picture. He did not consent to the
media reports.
- By
letter dated 12 July 2007 the applicant appealed to the Helsinki
Court of Appeal (hovioikeus, hovrätten), claiming, inter
alia, that the publication of public information could not fall
within the scope of Chapter 24, section 8, of the Penal Code and
that, in any event, the intention was lacking.
- On
10 July 2008 the Court of Appeal upheld the lower court’s
decision. The legal fees to be paid by the applicant were lowered to
EUR 4,000 plus interest. The request for non-pecuniary damages
was rejected as premature because the compensation claim had not been
directed against Yhtyneet Kuvalehdet Oy. The court found, in
addition to the District Court’s reasoning, that a crime was
not the perpetrator’s private matter. However, J.’s trial
had still been pending when the impugned article was published. Due
to his mental illness, he had not been able to understand that his
acts or trial would attract more publicity than usual. The
applicant’s act was intentional as he must have known that it
was probable that the publication of the information would be
conducive to suffering or damage to J.
- By
letter dated 8 September 2008 the applicant appealed to the Supreme
Court (korkein oikeus, högsta domstolen), reiterating the
grounds of appeal already presented before the Court of Appeal.
- On
4 December 2008 the Supreme Court refused the applicant leave to
appeal. J. was granted leave to appeal with regard to the question of
non pecuniary damages.
- On
6 May 2009 the Supreme Court referred the issue of non pecuniary
damages back to the Helsinki District Court for examination as
Yhtyneet Kuvalehdet Oy had not been summoned as a defendant in
the case or been reserved an opportunity to be heard in the matter.
- On
23 March 2010 the Helsinki District Court found the applicant liable
for damages. It ordered the applicant to pay J., jointly with
Yhtyneet Kuvalehdet Oy, EUR 10,000 plus interest as well as
EUR 3,200 for costs and expenses. Moreover, the applicant alone was
ordered to pay J. costs and expenses in the amount of EUR 5,728.86.
The court found that the publication of J.’s name had caused
him and his family mental suffering, especially as his delusions had
been mentioned in the article. The article had affected J.’s
reputation permanently and it had made it difficult for J. to
continue to live a normal life. J. had given an interview to another
magazine in which his identity had not been disclosed. Therefore, the
fact that he had given the interview did not make his suffering any
less. At the time of the interview J. had been mentally ill and was
not able to assess the consequences of the interview. J.’s name
had been published by the applicant seven months after J. had
committed the crimes and during the District Court proceedings.
- By
letter dated 21 April 2010 the applicant and Yhtyneet Kuvalehdet
Oy appealed against the District Court decision to the Helsinki
Court of Appeal, requesting that the claim for damages be rejected or
at least reduced. They contended that the non-pecuniary damage
suffered by J. was not due to the applicant’s article but the
result of the crimes he had committed.
- On
5 November 2010 the Helsinki Court of Appeal partly accepted the
applicant’s appeal and ordered him to pay J., jointly with
Yhtyneet Kuvalehdet Oy, EUR 5,000 plus interest as well as EUR
2,140 for costs and expenses. Moreover, the applicant alone was
ordered to pay J. costs and expenses in the amount of EUR 4,200. The
court found that information about a person’s mental health was
sensitive information the publication of which, together with J.’s
name, was conducive to causing J. suffering. The applicant’s
conviction and order to pay non-pecuniary damages to J. did not
represent an unreasonable sanction, even bearing in mind that the
case concerned an exception to the freedom of expression. The fact
that J. had given an interview to a magazine prior to the publication
of the impugned article had caused him suffering already. The
applicant could be held responsible only for the additional suffering
caused to J. thereafter by the impugned article.
- On
an unspecified date all parties to the proceedings appealed to the
Supreme Court.
- On
21 June 2011 the Supreme Court refused leave to appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Constitutional provisions
- Article
8 of the Constitution of Finland (Suomen perustuslaki, Finlands
grundlag, Act no. 731/1999) provides that no one shall be
found guilty of a criminal offence or be sentenced to a punishment on
the basis of a deed, which has not been determined punishable by an
Act at the time of its commission. The penalty imposed for an offence
shall not be more severe than that provided by an Act at the time of
commission of the offence.
- Article
10 of the Constitution guarantees everyone’s right to private
life. According to it,
“Everyone’s private life, honour and the
sanctity of the home are guaranteed. More detailed provisions on the
protection of personal data are laid down by an Act.
The secrecy of correspondence, telephony and other
confidential communications is inviolable.
Measures encroaching on the sanctity of the home, and
which are necessary for the purpose of guaranteeing basic rights and
liberties or for the investigation of crime, may be laid down by an
Act. In addition, provisions concerning limitations of the secrecy of
communications which are necessary in the investigation of crimes
that jeopardise the security of the individual or society or the
sanctity of the home, at trials and security checks, as well as
during the deprivation of liberty may be laid down by an Act.”
- Article
12 of the Constitution concerns the freedom of expression and
provides the following:
“Everyone has the freedom of expression. Freedom
of expression entails the right to express, disseminate and receive
information, opinions and other communications without prior
prevention by anyone. More detailed provisions on the exercise of the
freedom of expression are laid down by an Act. Provisions on
restrictions relating to pictorial programmes that are necessary for
the protection of children may be laid down by an Act.
Documents and recordings in the possession of the
authorities are public, unless their publication has for compelling
reasons been specifically restricted by an Act. Everyone has the
right of access to public documents and recordings.”
Penal Code
- Chapter
24, section 8, of the Penal Code (rikoslaki, strafflagen;
Act no. 531/2000) reads as follows:
“Dissemination of information violating private
life: A person who unlawfully (1) through the use of the
mass media, or (2) in another manner publicly spreads information, an
insinuation or an image of the private life of another person, such
that the act is likely to cause that person damage or suffering, or
subject that person to contempt, shall be convicted of injuring
personal reputation and sentenced to a fine or a maximum term of two
years’ imprisonment.
The spreading of information, an insinuation or an image
of the private life of a person in politics, business, public office
or a public position, or in a comparable position, shall not
constitute injury to personal reputation, if it could affect the
evaluation of that person’s activities in the position in
question and if it is necessary for the purposes of dealing with a
matter of importance to society.”
32. According
to the travaux
préparatoires
(see government bill HE 184/1999), the content of this provision
corresponds to the former 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 exercising important
political or economic powers. Functions in respect of which the
protection of private life is narrower in scope under paragraph 2
include political functions, business functions and public functions
or duties. The matter must have social significance. This
restriction, however, applies only to the persons referred to, not to
their close friends and family. According to the Parliamentary Law
Committee’s Report (lakivaliokunnan
mietintö, lagutskottets betänkande
LaVM 6/2000), the purpose of that provision is to permit the
dissemination of information on the private life of such
persons if the information may be relevant in assessing the
performance of their functions.
- The government bill HE 184/1999 further provides that
in the assessment of interferences with private life, the lawfulness
of the interference and the concept of private life are taken into
account. The publicity of a document does not automatically give the
right to present in the mass media information concerning one’s
private life included in the document. A person’s consent to
the provision of information has relevance in the assessment of the
lawfulness of the interference. Without explicit consent, there is
usually no reason to believe that the person in question would have
consented to the publication of information relating to private life
(see Parliamentary Law Committee’s Report LaVM 6/2000).
Moreover, private life is, in particular, protected against
dissemination of information which may be correct as such. In order
for the act to be punishable, it is necessary that the information
concerns the private life of the person in question (see government
bill HE 184/1999). With regard to the concept of private life, a
reference is made to the explanatory works concerning the
Constitutional provisions on fundamental rights and to the government
bill HE 84/1974.
- In
the travaux préparatoires concerning the former Chapter
27, section 3(a), of the Penal Code (see government bill HE
84/1974), there was no precise definition of private life but matters
such as, inter alia, family life, spare time activities,
health and relationships and such conduct in socially significant
positions that had no significance to the relevant exercise of power,
were considered as a part of private life. It was further required
that the act might have caused damage or suffering. Such damage might
have also been “immaterial damage, which might have manifested
itself in problems with social interaction or respect”. An
ordinary person enjoyed the strongest protection of private life. His
or her involvement in an incident of importance to society might have
warranted an exception to the protection. In any case, if an offence
was of such a kind that it could not be regarded as having social
significance, it was a matter to be protected as belonging to the
sphere of private life, otherwise the protection of private life did
not restrict publishing. Moreover, the publishing could not be
to a greater extent than was necessary. Thus, the necessity of
mentioning a person’s name or other description of a person
enabling identification was always subject to careful consideration.
Provisions concerning publicity
- The
Act on the Openness of Government Activities (laki viranomaisten
toiminnan julkisuudesta, lagen om offentlighet i myndigheternas
verksamhet; Act no. 621/1999) contains provisions on the right of
access to official documents in the public domain, officials’
duty of non-disclosure, document secrecy and any other restrictions
of access that are necessary for the protection of public or private
interests, as well as on the duties of the authorities to achieve the
objectives of the Act. However, there are specific provisions that
apply to court hearings.
- According to section 22 of the Act on the Publicity of
Court Proceedings in General Courts (laki oikeudenkäynnin
julkisuudesta yleisissä tuomioistuimissa,
lagen om offentlighet vid rättegång i allmänna
domstolar; Act no. 370/2007), the court decisions are public
unless the court orders that they be kept secret. The parties and the
public have the right to be present when the decisions are
pronounced.
- According
to the preparatory works of the Act (see government bill HE 13/2006),
“... the case files are to a large extent public
and the publicity does not limit itself to publicity of oral
hearings. On the other hand, in Finland the publicity of the case
files does not automatically mean that all public documentation could
as such, for example, without invading privacy, be published in the
media. This right of the media to publish is limited not only by its
self-regulation but also for example by the provisions of the Penal
Code concerning the protection of privacy. It can, thus, be said that
publicity is wider and the control of the protection of privacy is
done mostly retrospectively. It is for the media themselves to
consider which of the public documentation they shall publish.”
Provisions concerning liability
- Section
39 of the Freedom of the Press Act (painovapauslaki,
tryckfrihetslagen; Act no. 1/1919), as in force at the relevant
time, provided that the provisions of the Tort Liability Act applied
to the payment of compensation for damage caused by the content of
printed material.
- Chapter
5, section 6, of the Tort Liability Act (vahingonkorvauslaki,
skadeståndslagen, Act no. 412/1974, as amended by Act no.
509/2004), stipulates that damages may also be awarded for distress
arising, inter alia, from an offence against liberty, honour,
home or private life. Under Chapter 5, section 1, of the said
Act, damages shall constitute compensation for personal injury and
damage to property. Section 2 provides that a person who has suffered
personal injury shall be entitled to damages to cover medical costs
and other costs arising from the injury, as well as loss of income
and maintenance and pain and suffering.
- According
to the government bill to amend the Tort Liability Act (HE 116/1998),
the maximum amount of compensation for pain and suffering from, inter
alia, bodily injuries had in the recent past been approximately
FIM 100,000 (EUR 16,819). In the subsequent government bill to amend
the Tort Liability Act (HE 167/2003, p. 60), it is stated that
no changes to the prevailing level of compensation for suffering are
proposed. In the recommendation of the Personal Injury Advisory Board
(Henkilövahinkoasiain neuvottelukunta, Delegationen för
personskade-ärenden) in 2008, compensation awards for
distress in defamation cases can go up to EUR 10,000 and in cases
concerning dissemination of information violating personal privacy up
to EUR 5,000. On the other hand, the maximum award for, for example,
attempted manslaughter, murder or killing varies between EUR 3,000
and EUR 5,000.
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 were of general significance (Article 24). The principles
concerning the protection of an individual also apply to the use of
information contained in public documents or other public sources.
Information being public does not always mean that it is freely
publishable (Article 29).
- New
Guidelines came into force in 2005, which noted that when publishing
public material regard must be had to the protection of private life.
Highly delicate information relating to one’s personal life may
only be published with the consent of the person in question, or if
such matters are of considerable public interest (Article 27).
- Also
the Council for Mass Media (Julkisen sanan neuvosto,
Opinionsnämnden för massmedier), which is a
self-regulating body established in 1968 by publishers and
journalists in the field of mass communication and whose task it is
to interpret good professional practice and defend the freedom of
speech and publication, has issued a number of resolutions and
statements, inter alia, in 1980 and 1981. The former concerned
the content of private life and the latter disclosure of names in
crime news coverage.
- In
its statement of 1980, the Council for Mass Media stated, inter
alia, that the protection of private life applies, in principle,
to all citizens. The greater and more profound social implications a
matter has, the more important it is to be able to publish
information thereon. The Council divided persons into three groups as
to the level of 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 sphere of private
life. On the contrary, information concerning lifestyle does normally
belong to such person’s sphere of private life even though his
or her sphere of protection is narrower than that of an ordinary
citizen. In some cases information concerning a person’s
lifestyle can be closely connected to his or her professional tasks
in a way that its publication is justified. It is required, however,
that the matter in question does have considerable general
significance. Also, the publishing should not extend further than is
necessary for the consideration of the matter. Finally, it is in
accordance with good journalistic practice to see to it that the
publishing does not cause undue suffering for the person in question
or for his or her relatives.
III. RELEVANT INTERNATIONAL MATERIALS
- On
10 July 2003 the Committee of Ministers of the Council of Europe
adopted Recommendation No. Rec(2003)13 on the provision of
information through the media in relation to criminal proceedings. In
points 1, 2 and 8 of the principles appended to the recommendation,
it stated as follows:
“The public must be able to receive information
about the activities of judicial authorities and police services
through the media. Therefore, journalists must be able to freely
report and comment on the functioning of the criminal justice system,
subject only to the limitations provided for under the following
principles.
Respect for the principle of the presumption of
innocence is an integral part of the right to a fair trial.
Accordingly, opinions and information relating to on-going criminal
proceedings should only be communicated or disseminated through the
media where this does not prejudice the presumption of innocence of
the suspect or accused.
The provision of information about suspects, accused or
convicted persons or other parties to criminal proceedings should
respect their right to protection of privacy in accordance with
Article 8 of the Convention. Particular protection should be given to
parties who are minors or other vulnerable persons, as well as to
victims, to witnesses and to the families of suspects, accused and
convicted. In all cases, particular consideration should be given to
the harmful effect which the disclosure of information enabling their
identification may have on the persons referred to in this
Principle.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that there
had been no pressing social need to interfere with his right to
freedom of expression and that his conviction and sentence had not
been proportionate to the accepted aims of limiting the freedom of
expression.
- 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 this complaint 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
- The
Government agreed that there had been an interference with the
applicant’s freedom of expression but maintained that this
interference was prescribed by law, namely by Chapter 24, section 8,
of the Penal Code, and pursued the legitimate aim of protecting the
reputation or rights of others, namely J.’s privacy.
- As
to the necessity, the Government pointed out that the applicant was
only convicted for having published J.’s name and his
psychological condition, all this information being public. However,
the fact that information was public did not mean that it could be
published. The domestic courts found that J. was a senior police
officer whose duties involved the exercise of public power. However,
the crimes had taken place during his free time. On the other hand,
the local interest in the case had been so exceptional that it had
been reasonable to write about the acts committed by J. and about his
state of mind. The applicant had been aware of the fact that J. had
been mentally ill at the time of the publication. The domestic courts
found that the publication of J.’s name did not strengthen the
applicant’s journalistic message nor was it well-founded in any
other way. His name was mentioned about 50 times and was thus not a
mistake. J.’s name had not been disclosed in any other
publication. The fact that J. had given interviews to the press did
not change the outcome of the present case as he had not been able to
evaluate the repercussions of his actions due to his mental illness.
- In
the Government’s view the circumstances of the present case
were not a matter of public interest. The domestic courts and the
Council for the Mass Media reached the same conclusion. The applicant
had thus not shown any adequate ground for publication of the
information. The published information consisted of facts only, but
the information given was very detailed. This information fell thus
within the scope of protection of J.’s private life. Moreover,
the publication of this private information took place before J. was
convicted. The published article reached about 100 readers in J.’s
home town and about 25,000 readers in the whole country. The
potential damage to J.’s reputation was thus not limited. As to
the sanctions imposed on the applicant, the issue of civil liability
of the applicant was still pending before the Court of Appeal and the
issue of proportionality of this sanction could thus not yet be
assessed. In the Government’s view the proportionality should
only be assessed in respect of the applicant’s conviction. The
interference with the applicant’s right to freedom of
expression was thus proportionate to the legitimate aim pursued.
- The
applicant maintained that there had been an interference with his
freedom of expression and that the conditions in Article 10 § 2
of the Convention had not been fulfilled. The article could not
violate Chapter 24, section 8, of the Penal Code as it only included
public information obtained from the District Court’s registry
and from J.’s legal representative who had disclosed J.’s
degree of responsibility and request to undergo psychiatric
examination. There was very little case-law on the publication of a
defendant’s name. The Supreme Court had found in one of its
precedent cases that the publication of a convicted criminal’s
name in a magazine did not violate his or her privacy but this matter
needed to be assessed on a case by case basis. The applicant claimed
that normally such information did not enjoy any protection but was
considered to be public. There were no exceptions concerning police
officers. It only became known in spring 2010 that J. had in fact
resigned from his post in 2004.
- As
to the necessity, the applicant pointed out that there had probably
never been any other comparable criminal case in which a police
officer had been the defendant. The Council for the Mass Media never
stated in its decision that there was no public interest involved. In
any event, according to the Council’s own statement in 2002,
the self-regulation proceedings before it could not be used as a
basis for charges or conviction. If that were the intention, the
Council would refrain from giving a decision. In the present case,
J.’s counsel had assured the Council that J. did not envisage
initiating any criminal proceedings against the applicant, which in
the end was not the case. The applicant agreed with the Government
that the proportionality of the sanction imposed on him should not
yet be assessed because the issue of his civil liability was still
pending before the Court of Appeal.
2. The Court’s assessment
1. Whether there was an interference
- The
Court agrees with the parties that the applicant’s conviction,
the fines imposed on him and the award of damages constituted an
interference with his 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 seem to agree that the interference
complained of had a basis in Finnish law, namely Chapter 24, section
8, of the Penal Code. The parties’ views, however, diverge as
far as the foreseeability of the said provision is concerned. The
Court must thus examine whether the provision in question fulfils the
foreseeability requirement.
- The
Court has already noted that a norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
individual to regulate his conduct: he must be able - if need be with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable. Again, whilst certainty is
highly desirable, it may entail excessive rigidity and the law must
be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are a
question of practice (see Sunday Times v. the United Kingdom (no.
1), 26 April 1979, § 49, Series A no. 30 and, mutatis
mutandis, Kokkinakis v. Greece, 25 May 1993, § 40,
Series A no. 260-A).
- As
concerns the provision in question, Chapter 24, section 8, of the
Penal Code, the Court has already found in the Eerikäinen
case (see Eerikäinen and Others v. Finland, no.
3514/02, § 58, 10 February 2009), in which the earlier
provision of the Penal Code was at stake, and in the Reinboth
case (see Reinboth and Others v. Finland, no. 30865/08,
§ 71, 25 January 2011), that it did not discern any
ambiguity as to its contents: the spreading of information, an
insinuation or an image depicting the private life of another person
which was conducive to causing suffering qualified as an invasion of
privacy. Furthermore, the Court notes that the exception in the
second sentence of the provision concerning persons holding a public
office or function, or involved in professional life, a political
activity or in another comparable activity is equally clearly worded
(see Flinkkilä and Others v. Finland,
no. 25576/04, § 66, 6 April 2010, in respect of the earlier
provision; and Reinboth and Others v. Finland, cited
above, § 71).
- While
at the time when the article in question was published, in March
2004, there were several Supreme Court decisions concerning the
interpretation of the provision in question, all of which concerned
different aspects of private life, the Court finds that the
possibility that a sanction would be imposed for invasion of private
life was not unforeseeable. Even though there was no precise
definition of private life in the preparatory works (see government
bills HE 84/1974 and HE 184/1999), these works mentioned that the
necessity of mentioning a person’s name or other description of
a person enabling identification was always subject to careful
consideration. Had the applicant had doubts about the exact scope of
the provision in question, he should have either sought advice about
its content or refrained from disclosing J.’s identity.
Moreover, the applicant, who was a professional journalist, could not
claim to be ignorant of the content of the said provision since the
Guidelines for Journalists and the practice of the Council for Mass
Media, although not binding, provided even stricter rules than the
Penal Code provision in question.
- The
Court concludes therefore that the interference was “prescribed
by law” (see Nikula v. Finland, no. 31611/96, § 34,
ECHR 2002-II; Selistö v. Finland, no. 56767/00, § 34,
16 November 2004; Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 43, ECHR 2004-X; Eerikäinen
and Others v. Finland, cited above, § 58; Flinkkilä
and Others v. Finland, cited above, § 68; and Reinboth
and Others v. Finland, cited above, § 73). In addition, it
has not been disputed that the interference pursued the legitimate
aim of protecting the reputation or rights of others, within the
meaning of Article 10 § 2.
3. Whether the interference was necessary
in a democratic society
- According
to the Court’s well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual’s self-fulfilment. Subject to paragraph 2 of Article
10 of the Convention, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2 which must, however, be strictly construed. The
need for any restrictions must be established convincingly (see, for
example, Lingens v. Austria, 8 July 1986, § 41, Series A
no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93,
§ 43, ECHR 1999-VIII).
- The
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
- The
Court’s task in exercising its supervision is not to take the
place of national authorities but rather to review under Article 10,
in the light of the case as a whole, the decisions they have taken
pursuant to their power of appreciation (see, among many other
authorities, Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999-I).
- In
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks made by the applicants and the context in
which they made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
(see Sunday Times v. the United Kingdom (no. 1), cited above
§ 62, Series A no. 30; Lingens, cited above, §
40; Barfod v. Denmark, 22 February 1989, § 28,
Series A no. 149; Janowski, cited above, § 30; and News
Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52,
ECHR 2000 I). In doing so, the Court has to satisfy itself
that the national authorities applied standards which were in
conformity with the principles embodied in Article 10 and, moreover,
that they based themselves on an acceptable assessment of the
relevant facts (see Jersild v. Denmark, 23 September
1994, § 31, Series A no. 298).
- The Court further emphasises the essential function
the press fulfils in a democratic society. Although the press must
not overstep certain bounds, particularly as regards the reputation
and rights of others and the need to prevent the disclosure of
confidential information, its duty is nevertheless to impart –
in a manner consistent with its obligations and responsibilities –
information and ideas on all matters of public interest (see Jersild,
cited above, § 31; De Haes and Gijsels v. Belgium,
24 February 1997, § 37, Reports of Judgments and
Decisions 1997-I; and Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 58, ECHR 1999-III).
This duty extends to the reporting and commenting on court
proceedings which, provided that they do not overstep the bounds set
out above, contribute to their publicity and are thus consonant with
the requirement under Article 6 § 1 of the Convention that
hearings be public (see Egeland and Hanseid v. Norway, no.
34438/04, § 49, 16 April 2009). Not only do the media have the
task of imparting such information and ideas, the public also has a
right to receive them (see, Sunday Times v. the United Kingdom
(no. 1), cited above, § 65). In addition, the Court is
mindful of the fact that journalistic freedom also covers possible
recourse to a degree of exaggeration, or even provocation (see Prager
and Oberschlick v. Austria, 26 April 1995, § 38, Series A
no. 313, and Bladet Tromsø and Stensaas, loc.
cit.).
- The limits of permissible criticism are wider as
regards a politician than as regards a private individual. Unlike the
latter, the former inevitably and knowingly lay themselves open to
close scrutiny of their words and deeds by journalists and the public
at large, and they must consequently display a greater degree of
tolerance (see, for example, Lingens v. Austria, cited above,
§ 42; Incal v. Turkey, 9 June 1998, § 54, Reports
of Judgments and Decisions 1998-IV; and Castells v. Spain,
23 April 1992, § 46, Series A no. 236).
- The Court reiterates that civil servants acting in an
official capacity are, like politicians, subject to wider limits of
acceptable criticism than is the case for private individuals.
However, it cannot be said that civil servants knowingly lay
themselves open to close scrutiny of their every word and deed to the
same extent as politicians and should therefore be treated on an
equal footing with the latter when it comes to the criticism of their
actions (see Nikula v. Finland, cited above, § 48).
- The freedom of expression has to be balanced against
the protection of private life guaranteed by Article 8 of the
Convention (see Mosley v. the United Kingdom,
no. 48009/08, § 115, 10 May 2011; and
Kasabova v. Bulgaria, no. 22385/03,
§ 60, 19 April 2011). The concept of private life covers
personal information which individuals can legitimately expect should
not be published without their consent and includes elements relating
to a person’s right to their image. The publication of a
photograph thus falls within the scope of private life (see Von
Hannover v. Germany, no. 59320/00, §§ 50-53 and
59, ECHR 2004-VI).
- In the cases in which the Court has had to balance the
protection of private life against freedom of expression, it has
stressed the contribution made by photographs or articles in the
press to a debate of general interest (see Tammer v. Estonia,
no. 41205/98, §§ 59 et seq., ECHR 2001-I;
New Verlags GmbH & Co. KG v. Austria, cited above, §§
52 et seq.; and Krone Verlag GmbH & Co. KG v. Austria,
no. 34315/96, §§ 33 et seq., 26 February 2002). The
Court thus found, in one case, that the use of certain terms in
relation to an individual’s private life was not “justified
by considerations of public concern” and that those terms did
not “[bear] on a matter of general importance” (see
Tammer, cited above, § 68) and went on to hold that there
had not been a violation of Article 10. In another case, however, the
Court attached particular importance to the fact that the subject in
question was a news item of “major public concern” and
that the published photographs “did not disclose any details of
[the] private life” of the person in question (see Krone
Verlag GmbH & Co. KG, cited above, § 37) and held
that there had been a violation of Article 10. In a group of Finnish
cases the Court found that a private person could, by her behaviour,
be taken to have entered the public domain and that the disclosure of
her identity in a newspaper report had a direct bearing on matters of
public interest (see Flinkkilä and Others v. Finland,
cited above, §§ 83 and 85; Tuomela and Others v.
Finland, no. 25711/04, §§ 56 and 58, 6 April 2010;
Jokitaipale and Others v. Finland, no. 43349/05, §§
71 and 73, 6 April 2010; Soila v. Finland, no.
6806/06, §§ 68 and 70, 6 April 2010; and Iltalehti and
Karhuvaara v. Finland, no. 6372/06, §§ 60 and 62, 6
April 2010). The Court found a violation also in these cases.
- Also
of relevance for the balancing of competing interests which the Court
must carry out is the fact that under Article 6 § 2 of the
Convention a person has a right to be presumed innocent of any
criminal offence until proved guilty (see Bladet Tromsø and
Stensaas v. Norway [GC], cited above, § 65).
- Turning
to the facts of the present case, the Court notes that the applicant
was convicted on the basis of disclosure of private details made in
the impugned article in his capacity as an editor-in-chief and that
he, together with the publishing company, was ordered to pay damages
and costs.
- The
Court observes at the outset that the impugned article described the
details of the incident of 29 July 2003 and it included J.’s
name, year of birth, some background information about him and his
current place of work. The information in the article was based on
the public court documents acquired by the applicant from the
District Court after the hearing on 3 February 2004. It also stated
that J. had wished to undergo a psychiatric assessment before the
court’s decision was made and that he had been ordered to do so
by the court.
- 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 applicant. Nor is
there any suggestion that details about J. were obtained by
subterfuge or other illicit means (compare Von Hannover v.
Germany, cited above, § 68). The facts set out in the
articles in issue were not in dispute even before the domestic
courts.
- It
is clear that J. was an experienced police officer whose duties
involved the exercise of public power. The offences were not
committed in office but in J.’s free time. However, he had used
the authority of his public function to commit the offences. Criminal
charges were preferred against him and he was later convicted as
charged but the sentence was waived due to his mental illness. The
Court notes that even though the offences committed as such might
appear ordinary, it was very rare for such offences to be committed
by a police officer.
- The
Court further observes that the impugned article focused on
explaining the course of the events as they had been recounted by J.
during the pre-trial investigation. This information was public. No
details of J.’s private life were mentioned, except his name
and the fact that he had wished to undergo a psychiatric assessment
before the court’s decision was made and that he had been
ordered to do so by the court. Practically the same information was
given by J. in the course of an interview given to another magazine.
- Moreover,
it is to be noted that the disclosure of J.’s identity in the
reporting had a direct bearing on matters of public interest, namely
his conduct and his ability to continue in his post as a police
officer. As J. was a police officer, it is difficult to see how his
acts, even if committed during his free time, were not a matter of
public interest. Therefore, the Court considers that there was a
continuing element of public interest involved in the reporting.
- The
Court further notes that the emphasis in the article in question was
clearly on J.’s account of the course of events. There was
hardly any comment made by the applicant in the article. Even though
the article was written and published before J.’s conviction,
the reporting and commenting on his court proceedings were objective
and irreproachable from the point of view of Article 6 § 2
of the Convention.
- Finally,
the Court has taken into account the severity of the sanctions
imposed on the applicant, including the issue of civil liability
which has meanwhile become final (see paragraph 27 above). The
applicant was convicted under criminal law and was ordered to pay
thirty day-fines, amounting to EUR 1,170. In addition, he was,
together with the publishing company, ordered to pay damages to J. in
a total amount of EUR 5,000 plus interest and his legal fees
amounting to EUR 2,140. Moreover, the applicant alone was ordered to
pay J. costs and expenses in the amount of EUR 4,000 and EUR 4,200.
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
40 above).
- The
Court would observe in this connection that recourse to criminal
sanctions in order to punish media professionals who publish
newspaper reports which are found to invade an individual’s
privacy is not, as such, incompatible with Article 10 of the
Convention. However, it is only in exceptional circumstances that
such sanctions can be justified (see Saaristo and Others v.
Finland, no. 184/06, § 69, 12 October
2010; and Yleisradio Oy and Others v.
Finland (dec.), no. 30881/09, 8
February 2011; as regards defamation and insult, see Cumpǎnǎ
and Mazǎre v. Romania [GC], no. 33348/96, § 115,
ECHR 2004-XI; Lindon, Otchakovsky-Laurens and July v. France [GC],
nos. 21279/02 and 36448/02, § 59, ECHR 2007 IV; and
Długołęcki v. Poland, no. 23806/03, § 47,
24 February 2009). No such exceptional circumstances exist in the
present case.
- The
Court considers that such severe consequences, viewed against the
background of the circumstances resulting in the interference with
J.’s right to respect for his 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 was
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. REMAINDER OF THE APPLICATION
- The
applicant also complained under Article 7 of the Convention that he
had been convicted although a defendant’s name was public
information by law and publishing public information was not
criminalised according to the Penal Code.
- Having
regard to the case file, the Court finds that the matter complained
of does not disclose any appearance of a violation of the applicant’s
rights under the Convention. Accordingly, this part of the
application is manifestly ill-founded and must be rejected pursuant
to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 5,650 in respect of pecuniary damage and EUR
5,000 in respect of non-pecuniary damage.
- The
Government noted that the applicant had failed to submit any
documents supporting the actual payment by him of the amounts claimed
in respect of pecuniary damage. The Government left it to the Court’s
discretion to decide whether the applicant should be reimbursed the
pecuniary damages claimed even in part. As to non-pecuniary damage,
the Government noted that the applicant’s claim included also
Article 7 complaints in respect of which the case had not been
communicated. The Government found the claim for non-pecuniary damage
too high as to quantum and considered that the compensation awarded
should not exceed EUR 1,500.
- The
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage. Consequently, there is
justification for making an award to the applicant under that head.
Having regard to all the circumstances and to the documents in its
possession, the Court awards the applicant EUR 5,650 in compensation
for pecuniary damage. Moreover, the Court considers that the
applicant must have sustained non-pecuniary damage. Ruling on an
equitable basis, it awards the applicant EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 8,135.20 for the costs and expenses
incurred before the domestic courts and EUR 4,412.50 for those
incurred before the Court.
- The
Government noted that expenses such as photocopying and postage
should not be reimbursed at all as they were already included in
counsel’s fee. Moreover, the applicant had failed to specify in
the invoices the measures performed, the hours taken for each measure
and the cost of each measure. Some of the costs were paid jointly
with the publishing company which was not party to the present case.
The applicant had failed to submit any supporting information as to
how the legal costs between him and the publishing company had been
divided and who had actually paid them. In the Government’s
view this head should be rejected, or at any rate, the total amount
for costs and expenses should not exceed EUR 4,000 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 above criteria, the Court rejects the claims under all heads as
it is unable to verify, on the basis of the documents in its
possession, whether the applicant has actually paid these costs and
expenses or not.
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
- Declares the complaint concerning Article 10 of
the Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, 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
5,650 (five thousand six hundred and fifty euros), plus any tax that
may be chargeable, in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
