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FOURTH
SECTION
CASE OF
EERIKÄINEN AND OTHERS v. FINLAND
(Application
no. 3514/02)
JUDGMENT
STRASBOURG
10 February 2009
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 Eerikäinen and Others v. Finland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 20 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3514/02) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Finnish nationals, Mr Pentti Eerikäinen
and Mr Matti Paloaro, on 25 January 2002. The second applicant
was the former editor-in-chief of the third applicant, a publishing
company named Yhtyneet Kuvalehdet Oy (“the applicants”).
The second applicant died on 21 August 2008. His children
Mr Ari Paloaro and Ms Ulla Paloaro expressed their wish to pursue the
application. For practical reasons Mr Matti Paloaro will
continue to be called “the second applicant” in this
judgment.
- The
applicants were represented by Mr H. 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
applicants alleged a violation of Article 10 of the Convention.
- By
a decision of 26 September 2006, the Court declared the application
partly admissible.
- The
applicants and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
- In
September 2008 third-party comments were received from
the European Federation of Journalists, which had been invited by the
President to intervene in the written procedure (Article 36 § 2
of the Convention and Rule 44 § 2). The parties replied to the
comments (Rule 44 § 5). The third-party comments are summarised
below.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The first applicant was born in 1946 and lives in
Kauvatsa. The second applicant was born in 1942 and was resident in
Härmä at the time of his death.
- The
first applicant is a freelance journalist. In 1997 he wrote an
article about criminal proceedings which were then pending before the
Turunseutu District Court (käräjäoikeus,
tingsrätten). Those proceedings were public in nature. A
defendant, X, was charged with various counts of tax fraud and
aggravated fraud for allegedly deceiving the Social Insurance
Institution (kansaneläkelaitos, folkpensionsanstalten)
and insurance companies. The article was published in issue no.
6/1997 of the magazine Alibi, and entitled: “It seemed
legal, but... a woman entrepreneur cheated to obtain a pension of
over 2 million marks?” (In Finnish: Näytti
lailliselta, mutta... yrittäjärouva huijasi yli 2 miljoonan
eläkkeen?). The article did
not mention X's name. In the magazine's table of contents, however,
her first name was mentioned. The article included a reproduction of
an article which had been published eight years previously with two
photographs of X. That article, written by the first applicant, had
been published in another magazine and mentioned X's full name and
included two photographs of her, one taken inside her home and
another in her garden. The article was about a house purchased by the
applicant which turned out to be full of rising damp. This situation
naturally made her extremely miserable as she had spent her money on
an uninhabitable house.
- In
September 1997 X lodged a criminal complaint, and proceedings were
instituted against the applicants. On 18 December 1997, however, the
Espoo District Court dismissed the charges. X appealed to the
Helsinki Court of Appeal (hovioikeus, hovrätten), which
upheld the judgment on 1 April 1999. X was ordered to reimburse
the applicants' legal costs.
- Subsequently,
X brought civil proceedings against the applicants before the Espoo
District Court. She claimed that the said article had incriminated
and insulted her and, in the alternative, that her picture had been
published without her consent, causing her mental suffering. She
requested compensation for non-pecuniary damage amounting to
250,000 Finnish marks (FIM) (approximately 42,047 euros
(EUR)). In the alternative, she claimed compensation for the
publication of her picture and non-pecuniary damages amounting to FIM
125,000 (EUR 21,023). She also claimed pecuniary damages
amounting to FIM 29,234 (EUR 4,917). In a hearing before the
court she claimed that publication of the article and photograph had
amounted to an invasion of her privacy.
- In
its judgment of 31 March 1998 the District Court found that, given
that X had been only a suspect at the time and the criminal case
against her had still been pending, it had been wrongly alleged in
the table of contents and in the headline of the article that she had
obtained pension payments by fraud. The case thus amounted to
defamation, as set out in Chapter 27 of the Penal Code (rikoslaki,
strafflagen). The court found that other parts of the article
were not defamatory. Under the Tort Liability Act
(vahingonkorvauslaki, skadeståndslagen; Act
no. 412/1974), the court ordered the applicants jointly and severally
to pay X FIM 80,000 (EUR 13,455) for non-pecuniary
damage and FIM 27,554 (EUR 4,634) for pecuniary damage, and
to pay her legal costs. Finally, it found that, having regard to the
above, there was no need to adjudicate on her second claim.
- The
applicants appealed to the Helsinki Court of Appeal, asserting their
right to freedom of expression. X also appealed, requesting that the
amount of damages be increased.
- On
8 December 1999, without holding an oral hearing, the appellate court
quashed the judgment, reasoning, inter alia, that:
“... It was clear from the text of the article
that it concerned a pending public trial. X's identity was not
revealed in the headline, thus she could not be assumed to be guilty
of an offence only by reading the headline. Neither was her identity
disclosed in the table of contents; to identify her required reading
through the article. The text of the article is not defamatory or
slanderous on the grounds set out in the District Court's judgment.
Publishing an article about charges brought before a public trial is
justified, even though it might cause suffering for the accused. The
act did not amount to defamation ...
... the crimes allegedly committed cannot be regarded as
minor, taking into account their extent, effects and social
importance. An article about this kind of case, and the publication
of a photo from which [X] could have been identified, is not a
violation of her privacy.”
- X
applied for leave to appeal to the Supreme Court
(korkein oikeus, högsta domstolen).
- On
21 November 2000 the Supreme Court granted leave to appeal. On 26
September 2001 it issued its judgment, which became a precedent (KKO
2001:96). The Supreme Court ruled that, in line with the grounds
of the Court of Appeal's judgment, the applicants were not guilty of
defamation. It found, however, that by attaching the said
illustration (in Finnish: kuvitus; that is by reproducing the
old article which included X's name and photographs), the applicants
had violated her right to privacy, and ordered them jointly to pay
FIM 20,000 (EUR 3,364) for non-pecuniary damage together with
interest from the service of the summonses in 1997 and to reimburse
her legal costs. The court reasoned, inter alia, that:
“...
On the grounds mentioned in the Court of Appeal's
judgment, the Supreme Court considers that [the first and the second
applicants] have not committed an act of defamation within the
meaning of Chapter 27, Article 1 or 2 of the Penal Code as in force
at the time of the act. [see paragraph 13 above]
The question thus raised by this case is whether [the
first and the second applicants] without a legal right through the
use of a mass medium or in another similar manner have publicly
spread information, an insinuation or an image depicting the private
life of [X] which has been conducive to causing her damage or
suffering and are thereby guilty of invasion of privacy within the
meaning of Chapter 27, Article 3a, of the Penal Code as in force
at the time of the publishing of the article.
According to this provision of law, making public [an
article that discusses] a person's actions in public office or
function, in business life, in a political or other comparable
activity, is not to be considered an invasion of privacy if the
reporting is necessary to address a matter of social importance. As
noted in the travaux préparatoires (HE no. 84/1997 vp
...) this is relevant chiefly in domains where decision-making takes
place or in which the circumstances in reality may affect the
every-day life of several persons or which have relevance of
principle. According to the travaux préparatoires, such
domains are first and foremost the attendance to a public office or
function, business life and political activity. According to the said
provision, what is essential is whether there is a significant social
need to discuss the acts of the person concerned by making public
facts which would otherwise belong to the sphere protected by the
right to respect for private life.
The criminal case, which has been the object of the
article published in the Alibi magazine, has concerned, inter
alia, the question whether [X] in order to obtain an unlawful
financial benefit, by concealing that she received her livelihood as
an entrepreneur, had misled the Social Insurance Institution and the
insurance companies to grant her a disability pension thereby causing
them economic loss. The acts mentioned in the charge related to [X's]
actions as an entrepreneur in a relatively small cleaning firm.
Although the criminal case concerned substantial financial benefits,
it was not a case which, viewed on its own, was of such general
public interest that there would have been grounds to reproduce, as
part of an article and without [X's] consent, another article that
included her name and photograph. Although the underlying purpose of
the article might have been to draw attention to the abuse of social
benefits in general by using an individual case and thus to a
negative social phenomenon, it was not necessary or justified to
publish without authorisation an illustration revealing the identity
of an individual private person charged with or convicted of such an
offence and in a similar position to [X].
Thus, [the first applicant], who wrote the article in
question and intentionally used as an illustration the
afore-mentioned earlier published article written by him and the
photograph of X in that connection, and [the second applicant], who
in his capacity as the magazine's editor-in-chief approved the
publication of the article, have through their acts without a legal
right by the use of a mass medium publicly spread information, an
insinuation or photograph depicting the private life of [X] which was
conducive to causing her damage or suffering.
Whether or not the fact that [X] was recognisable was
due to a mistake or other technical factor when the magazine was
printed has no relevance in the legal assessment of the acts of [the
first and the second applicants] since the article in question
together with its illustration has been made public without seeing to
and making sure that the typography of the article did not disclose
[X's] identity.”
- Meanwhile,
on 8 May 2000 the Turunseutu District Court convicted X of, inter
alia, five offences of tax fraud and two offences of aggravated
fraud and sentenced her to an immediate term of one year and ten
months' imprisonment. She was also ordered to pay damages.
- On
28 June 2002 the Turku Court of Appeal upheld X's conviction for,
inter alia, tax fraud, aggravated fraud and fraud, without
amending the sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Legislation
- Section
10 (as amended by Act no. 969/1995, which took effect on 1 August
1995 and remained in force until 1 March 2000) of the
Constitution Act (Suomen Hallitusmuoto, Regeringsform för
Finland, Act no. 94/1919), provided:
“Everyone has the right to freedom of expression.
The right to freedom of expression entails the right to impart,
publish and receive information, opinions and other communications
without prior hindrance from anyone. More precise provisions on the
exercise of the right to freedom of expression shall be prescribed by
an Act of Parliament. Restrictions on pictorial programmes necessary
for the protection of children may be prescribed by an Act of
Parliament.
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.”
The
same provision appears in Article 12 of the current Constitution of
2000 (Act no. 731/1999).
- Section
8 of the Constitution Act (as amended by Act no. 969/1995)
corresponded to Article 10 of the current Constitution, which
provides that everyone's right to private life is guaranteed.
- 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 contents of
printed material.
- Chapter
5, section 6, of the Tort Liability Act stipulates that damages may
also be awarded for distress arising from an offence against liberty,
honour or domestic harmony or from another comparable offence. 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.
- Chapter
27, Article 3a, of the Penal Code, as in force at the relevant time,
provided that a person who unlawfully, through the use of the mass
media or in another similar manner, publicly spread information, an
insinuation or an image depicting the private life of another person
which was liable to cause him or her damage or suffering, should be
convicted of invasion of privacy and sentenced to a maximum term of
two years' imprisonment or to a fine. A publication that discussed a
person's behaviour in public office or function, in professional
life, in a political or other comparable activity, was not to be
considered an invasion of privacy if the reporting was necessary to
address a matter of social importance.
- In
2000, Chapter 27, Article 3a, of the Penal Code was replaced by
Chapter 24, Article 8 (Act no. 531/2000). Under the new provision on
the injury of 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. According to
the Parliamentary Law Committee's 2000 Report (lakivaliokunta,
lagutskottet; 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.
- Section
2 of the Public Nature of Court Proceedings Act (laki
oikeudenkäynnin julkisuudesta, lag om offentlighet vid
rättegång; Act no. 945/1984), as in force at the
relevant time, provided that the name, profession and domicile of the
parties and the nature of the subject matter and the time and place
of a hearing were public information from the beginning of the trial
at the latest. Section 3 provided that the public had the right to be
present during hearings unless otherwise provided in the relevant
legislation. Section 9 stated that the provisions laid down in the
Openness of Government Activities Act (laki viranomaisten
toiminnan julkisuudesta, lag om offentlighet i myndigheternas
verksamhet: Act no. 621/1999) were applicable to trial
documents. Information and documents relating to a trial are, as a
rule, public once charges have been brought unless provided otherwise
by an Act.
Supreme Court practice
- In
a Supreme Court decision (KKO 1980 II 123) the following was
noted (summary from the Yearbook):
“The accused had picked up a photograph of the
plaintiff from the archives of a newspaper and published it in the
context of an electoral campaign without the plaintiff's consent. He
was convicted of a violation of private life and ordered, jointly
with the political organisations which had acted as publishers, to
pay damages for mental suffering.”
- In
June 1997 the Supreme Court delivered two decisions relating to
articles which had given information on cases of arson. The first
decision (KKO 1997:80) concerned a newspaper article (summary
from the Supreme Court's Yearbook):
“A newspaper published an article concerning cases
of arson, in which it was said that the suspect was the wife of the
head of a local fire department. As it was not even alleged that the
head of the fire department had any role in the events, there was no
justifiable reason for publishing the information on the marriage
between him and the suspect. The publisher, the editor-in-chief and
the journalist who wrote the article were ordered to pay compensation
for the suffering caused by the violation of the right to respect for
private life.”
- The
second decision (KKO 1997:81) concerned an article published
in a periodical, which was based on the afore-mentioned newspaper
article (see the previous paragraph) and on the records of the
pre-trial investigation and the court proceedings, but did not
indicate that the newspaper article had been used as a source
(summary from the Yearbook):
“Compensation was ordered to be paid for the
reason that the article violated the right to respect for private
life. Another issue at stake in the precedent was the relevance to
liability for damages and the amount of compensation in view of the
fact that the information had been reported in another publication at
an earlier stage.”
- The
article published in the periodical had also mentioned the name and
profession of the head of the fire department, although the offence
was not related to the performance of his duties. Thus, it had not
been necessary to refer to his position as head of the fire
department or to his marriage to the suspect in order to give an
account of the offence. The fact that the information had previously
been published in print did not relieve the defendants of their
responsibility to ensure, before publishing the information again,
that the article did not contain information insulting the persons
mentioned in it. The mere fact that the interview with the head of
the fire department had been published in the newspaper did not
justify the conclusion that he had also consented to its publication
in the periodical. Repeating a violation did not necessarily cause
the same amount of damage and suffering as the initial violation. The
readers of the newspaper and the periodical were partly different,
and the circulation of the newspaper apparently did not entirely
coincide with that of the periodical. Therefore, and considering the
differences in the content and tone of the articles, the Supreme
Court found it established that the article published in the
periodical was conducive to causing the head of the fire department
additional mental suffering. The events reported in the article did
not concern the plaintiff's conduct in the performance of his duties
as head of the fire department and it had not been necessary to
mention the complainant's name and profession for the purpose of
discussing a matter involving significant public interest or
reporting on the offences. By associating the complainant's name and
profession with the offences in question, the article had unlawfully
spread information and insinuations concerning his private life
likely to cause him damage and suffering. The disclosure of the
complainant's name and the emphasis on his occupation had amounted to
an insult. By again reporting on the matter two months after the
events had occurred, the periodical was found to have caused the
complainant additional suffering for which separate compensation was
to be paid.
- The
Supreme Court's decision of 25 June 2002 (KKO 2002:55)
concerned the broadcasting of the name of a woman who, together with
a person in a public position, had been a party to an assault. The
court found that the facts discussed in the television programme with
regard to the woman 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.
- Another
decision of 4 July 2005 (KKO 2005:82) concerned an article
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 is not a private matter of the offender.
In principle, however, a person convicted of and sentenced for having
committed an offence also enjoys 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
qualifies as “sensitive” personal data. The publicity per
se of criminal proceedings and of related documents does not mean
that information made public during the proceedings can 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 impugned
article did not include his photo.
Guidelines for 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 the publication of a name and other identifying
information in the context of reporting on offences was justified
only if a significant public interest was involved. The suspect's
identity was not usually to be published before a court hearing
unless there were important reasons relating to the nature of the
offence and the suspect's position which justified publication
(Article 26).
- New
Guidelines came into force in 2005, which noted that when publishing
public material regard must be had to the protection of private life.
The public nature of information does not necessarily mean that it
may be published. Special care must be observed when discussing
matters concerning a minor (Article 30). The name, photograph or
other identifying facts of a convicted criminal may be published
unless it is considered unjust in terms of his/her position or
offence. As regards a minor or an unaccountable person information
should be disclosed with restrain (Article 31). A journalist
must be careful not to present information that may lead to the
identification of a person in cases where he/she is only a suspect or
has merely been charged (Article 32).
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
point 8 of the principles appended to the recommendation, it
considers as follows:
“Protection of privacy in the context of on-going
criminal proceedings
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
commentary to the recommendation considers as follows (paragraphs 26
and 27):
“Everyone has the right to the protection of
private and family life under Article 8 of the European Convention on
Human Rights. Principle 8 recalls this protection for suspects, the
accused, convicted persons and other parties to criminal proceedings,
who must not be denied this right due to their involvement in such
proceedings. The mere indication of the name of the accused or
convicted may constitute a sanction which is more severe than the
penal sanction delivered by the criminal court. It furthermore may
prejudice the reintegration into society of the person concerned. The
same applies to the image of the accused or convicted. Therefore,
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.
An even stronger protection is recommended to parties
who are minors, to victims of criminal offences, to witnesses and to
the families of suspects, the accused and convicted persons. In this
respect, member states may also refer to Recommendation No. R (85) 11
on the position of the victim in the framework of criminal law and
procedure and Recommendation No. R (97) 13 concerning the
intimidation of witnesses and the rights of the defence.”
IV. THIRD-PARTY INTERVENTION
- The
European Federation of Journalists submitted the
following.
- In
France and Spain, there is no restriction on publishing pictures of
persons subject to pending criminal proceedings, provided that the
journalist, according to generally accepted procedure, clearly and
explicitly mentions that the person has not yet been found guilty.
- In
Belgium, there is no restriction on pub1ishing the photograph of a
person accused of a crime, unless the person himself/herself or the
court explicitly expresses his or her wish not to be photographed or
not to be published. In practice, publication of names and photos
happens daily, with the clear mention that the person is suspected
but not guilty. The Declaration of Duties and Rights of Journalists
and the Code of Conduct of Journalism also impose an obligation to
check the information, to respect privacy, and to correct false
information if necessary.
- Article
8 of the German Press Code provides that the press must respect the
private life and intimate sphere of persons. If, however, the private
behaviour of a person touches upon public interests, then it may be
reported on in individual cases. Care must be taken to ensure that
the privacy rights of uninvolved persons are not violated. The press
must respect a person's right to self-determination concerning
information about them and guarantee editorial data protection.
- The
United Kingdom Code of Conduct sets out the basic principles of
responsible independent journalism and has been the model for
numerous other journalist codes. It states, among other things, that
a journalist shall strive to ensure that information disseminated is
honestly conveyed, accurate and fair and does nothing to intrude into
a person's private life, grief or distress unless justified by
overriding public interest considerations. In addition, the Code of
Practice of the Press Complaints Commission states that, in reporting
on crime, relatives or friends of persons convicted or accused of
crime should not generally be identified without their consent,
unless they are genuinely relevant to the story.
- There
is no hard and fast rule in the Finnish Guidelines for Journalists.
The 2005 Guidelines urge caution and judgment, especially when a case
is only at the accusation stage. However, a public figure is less
protected than an ordinary person. A politician or a business leader
accused of an offence can be identified for a less serious crime. The
gravity of the crime is also an obvious relevant factor. The central
question is who is a public figure. There have been cases where
spouses, girlfriends or boyfriends of public figures have argued that
they were not, and won their case in court. Recently following a
school massacre the Minister of the Interior disclosed the name of
the killer in a live televised press conference, a few hours after
the incident. The police also recently published the name and picture
of a man accused of (and later convicted of) spreading HIV, as well
as the names and pictures of two escaped convicts. The basis of the
decision was public security. Many companies have their own code of
conduct. According to most of the companies the name of a convicted
person can be published if the sentence is two years or more in
prison, that is, where the crime is serious. But this is usually
restricted if publishing the name may disclose the identity of the
victim (child abuse cases, for example,) or if the person convicted
is a minor.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained under Article 10 of the Convention of a
violation of their right to freedom of expression, on the ground that
they had been ordered to pay damages for reporting on pending
criminal proceedings which dealt with a matter of general interest.
Their intention had not been to reveal any information about X's
private life. Article 10, in its relevant parts, reads as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to ... impart
information ... without interference by public authority ...
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.”
A. The parties' submissions
1. The applicants
- The
applicants submitted that the present case, as well as other Supreme
Court judgments restricting freedom of expression in the media, had
received attention in Finland. A public debate had taken place, in
which those judgments had been criticised. Furthermore, in December
2005 the Supreme Court had decided a case (no. 2005:136; see
paragraph 31 above) which concerned another article published in the
Alibi magazine. In that case, the majority of the Supreme
Court judges had taken the view that the magazine had been entitled
to publish the name of a convicted criminal. The incompatibility of
that Supreme Court judgment with its judgment in the present case
was, in itself, sufficient reason to find a violation. The applicants
also observed that it was difficult for the Finnish media to report
on legal proceedings because the domestic courts' decisions had made
it difficult to predict when disclosure of the identity of a
defendant or convicted person was within the sphere of freedom of
expression and the public nature of legal proceedings and when, in
contrast, disclosure constituted a criminal offence giving rise to a
liability to pay damages. In the present case the Supreme Court had
not even mentioned the Convention or Article 10 thereof. The names of
accused and convicted persons were published daily in the Finnish
media. There were no legal provisions defining when a defendant's
identity could be revealed. In the present case, the applicant's
actions had complied with the Guidelines for Journalists and no
complaints had been lodged with the Mass Media Council (julkisen
sanan neuvosto, opinionsnämnden för massmedier).
- The
applicants contested the Government's view that the interference was
prescribed by law. They stressed that the impugned article concerned
a public trial. The District Court had held at least nine hearings
before the impugned article was published. The applicants were
surprised that neither the Government nor the Supreme Court had
mentioned the principle of the public nature of legal proceedings,
given that the case related exclusively to the disclosure of the
identity of a defendant in such proceedings. Finnish legislation
contained no provision which required the accused person's consent
prior to publication of his or her name or picture. At the relevant
time the Constitution Act had not included a separate provision on
the protection of privacy. The defendant's identity in a trial had
never before been considered as belonging to a person's private life
within the meaning of Chapter 27, Article 3a, of the Penal Code, and
this principle still applied to public legal proceedings. For
example, in its decision no. 2005:136 the Supreme Court
majority had reached the opposite conclusion with regard to the
publication of a convicted person's name, ruling that “a
criminal offence is not the private matter of the individual who
committed the offence”. In the applicants' view, the Government
defined the concept of private life too broadly when they claimed
that information was part of private life unless specifically found
otherwise. This claim contradicted the provisions of the Public
Nature of Court Proceedings Act.
- The
provision on invasion of privacy required that, in order to
constitute a criminal offence, the publication of the information had
to be unlawful and intentional and had to relate to a person's
private life. The impugned article met none of these criteria.
Firstly, the publication of public information, namely a person's
identity, was a legal right. Secondly, being accused of an offence in
legal proceedings was not part of a person's private life. Thirdly,
the requirement of intent in criminal law was not met when a reporter
had no idea that the disclosure of a defendant's identity could
constitute a criminal offence. The Supreme Court's judgment in the
present case was probably the first in Finnish history in which the
opposite view had been upheld. The appellate court had found, in
accordance with legal precedent until the present case, that
reporting on charges which were the subject of public legal
proceedings was legitimate, even though the information published
could cause anguish to the defendant. The Guidelines for Journalists
did not meet the “prescribed by law” requirement since
they could not be applied when deciding whether an act constituted a
criminal offence. The applicants did not deny the ethical demands
placed upon the profession by the Guidelines. They observed that,
despite their legal rights, they had sought to protect X's identity
in the article by crossing out her surname and her picture, but
because of a printer's error, her face and surname had been shown.
- The
applicants argued that the protection of X's identity was not
necessary in a democratic society. There was no pressing social need
to depart from the established practice and regulations. In a
democratic State, legal proceedings were public and a defendant's
identity was public information; this also served to ensure the legal
protection of defendants. The question of whether the disclosure of
X's identity had been necessary for the purpose of dealing with a
socially important matter was irrelevant, since the provisions on the
public nature of legal proceedings were not associated with matters
of social significance. In any event, the proceedings against X had
significance for society. Offences of tax and accounting fraud did
not belong to private life, and fraud concerning a disability pension
amounting to almost FIM 2.5 million was a major offence. X had
ultimately received a heavy sentence. The criminal charges against X
had been significant enough to justify the publication of her name.
- The
applicants also pointed out that it was not easy to identify X from
the impugned article. The only persons likely to have identified her
were those in her immediate social circle. In any event, it was
established practice that persons who allowed themselves to be
interviewed could be discussed in the public domain, even if the
context was different. In the present case, X herself had taken the
initiative of having an article about herself published in another
magazine eight years previously. As a result she had become known to
a large group of people.
2. The Government
- The
Government conceded that the liability to pay damages amounted to an
interference with the exercise of the applicants' right to freedom of
expression. The interference was nonetheless prescribed by law,
having a basis in Chapter 27, Article 3a, of the then Penal Code and
section 10, subsection 1, of the Constitution Act in force at the
material time. The grounds relied on by the Finnish courts were
consistent with the legitimate aim of protecting X's private life.
- The
applicants had stated in their application that X could be
identified, although not easily, in the reproduced article. In
another part of their application they had stated that only X's
immediate social circle could have identified her. The Government
pointed out that the text of the earlier article which accompanied
the 1997 article had mentioned X's full name as well as her domicile.
In their opinion, a glance through the article sufficed to identify
the person concerned. Furthermore, X's first name had been mentioned
in the magazine's table of contents.
- The
Government emphasised that in the present case X was the owner of a
small cleaning business and thus did not hold an important position
such as a politician or an official. Her private life therefore
enjoyed more protection. Moreover, the case concerned the abuse of
social insurance (her own pension), which was not a very important
matter in terms of public interest and did not therefore warrant
publishing her name and photograph. By publishing the previous
article concerning a house deal the applicant had been caused
unnecessary additional suffering. Furthermore, it would have been
possible to discuss the phenomenon without identifying an individual
suspect.
- The
Government observed that the publication of names had never been
usual in news reports on offences. In particular, the publication of
the names of suspects or accused persons had not been considered to
be consistent with good journalistic practice. They noted that
self-regulation within the mass media played a role in defining the
limits on the protection of honour and privacy. According to the
Guidelines for Journalists, when reporting on offences, the
publication of a name and other identifying information was justified
only if it was in the public interest. The suspect's identity was not
to be published in advance of a court hearing unless there were
important reasons relating to the nature of the offence and the
suspect's position to justify such a move.
- Furthermore,
the Mass Media Council in Finland, a body which examined complaints
concerning both the press and the electronic media, had stated as far
back as 1981, that the publication of names in connection with
offences was justified only if required in the public interest.
- The
Government observed that the present application differed from the
case of News Verlags GmbH & Co.KG v. Austria (no.
31457/96, ECHR 2000 I), which concerned the publication of
a suspect's picture in connection with a report on offences (the
sending of letter bombs to politicians etc., severely injuring
several victims). In that case the media, other than the applicant
company, were free to continue to publish the suspect's picture
throughout the criminal proceedings against him. Moreover, it was not
the pictures but only their combination with the text that interfered
with his rights. The absolute prohibition on the publication of the
suspect's picture went further than was necessary to protect him
against defamation or against a violation of the presumption of
innocence.
- In
the Government's opinion the question of who had taken the initiative
of publishing the earlier article was irrelevant; this had also been
the view of the Supreme Court.
- Under
the domestic legislation compensation may be awarded for suffering.
The amount of compensation that could be awarded for non-pecuniary
damage was to be based on an equitable assessment made by the
relevant court within the limits of its competence.
- As
for the applicants' reference to the Supreme Court's decision
no. 2005:136, the Government argued that it concerned the
publishing of the name of a person convicted of a serious violent
crime, not that of a suspect. The Supreme Court's judgment in the
present case was in line also with other precedents (nos. 1997:80
and 81, 2000:54 and 2002:55).
B. The Court's assessment
1. Whether there was an interference
- The
Court agrees with the parties that the award of damages constituted
an interference with the applicants' 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
applicants argued that the names of accused persons were published
daily in the Finnish media and that they had not therefore been able
to foresee that the publication of X's name and photograph would
render them liable in damages. The Government argued that the
publication of names had never been usual in Finland in news reports
on offences and that it had not been considered consistent with good
journalistic practice to publish names of suspects or accused
persons. The Court does not discern any ambiguity as to the contents
of the relevant provision of the Penal Code (the spreading of
information, an insinuation or an image depicting the private life of
another person which was conducive to causing suffering qualified as
invasion of privacy; see paragraph 22 above). Nor was Chapter 5,
section 6, of the Tort Liability Act unclear (see paragraph 21
above). Having regard also to the domestic case-law on the subject,
the possibility that a sanction would be imposed was not
unforeseeable. The position taken in the Supreme Court's subsequent
decision of 2005 does not detract from this position as the
circumstances of that case concerning the conviction of a person of
violent crime degrading the victim's human dignity (see paragraph 31
above) were significantly different. The Court therefore concludes
that the interference was thus “prescribed by law” (see
Nikula v. Finland, no. 31611/96, § 34, ECHR
2002 II; Selistö v. Finland, no. 56767/00, §
34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland,
no. 53678/00, § 43, ECHR 2004 X). 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
- The
test of “necessity in a democratic society” requires the
Court to determine whether the “interference” complained
of corresponded to a “pressing social need”, whether it
was proportionate to the legitimate aim pursued and whether the
reasons given by the national authorities to justify it are relevant
and sufficient (see Sunday Times v. the United Kingdom (no. 1),
26 April 1979, § 62, Series A no. 30). In
assessing whether such a “need” exists and what measures
should be adopted to deal with it, the national authorities are left
a certain margin of appreciation. This power of appreciation is not,
however, unlimited but goes hand in hand with a European supervision
by the Court, whose task it is to give a final ruling on whether a
restriction is reconcilable with freedom of expression as protected
by Article 10 (see Bladet Tromsø and Stensaas v. Norway
[GC], no. 21980/93, § 58, ECHR 1999 III).
- Press
freedom is of cardinal importance in a democratic society, the press
having both a right and a duty to impart information and ideas on all
matters of public interest and concern. Article 10 of the Convention
does not, however, guarantee a wholly unrestricted freedom of
expression even with respect to press coverage of matters of serious
public concern. Under the terms of paragraph 2 of the Article the
exercise of this freedom carries with it “duties and
responsibilities”, which also apply to the press. These “duties
and responsibilities” are significant when, as in the present
case, there is a question of undermining the “rights of
others”. 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 X had a right to be presumed
innocent of any criminal offence until proved guilty (see Bladet
Tromsø and Stensaas v. Norway [GC], cited above, § 65).
By reason of the “duties and responsibilities”
inherent in the exercise of the freedom of expression, the safeguard
afforded by Article 10 to journalists in relation to reporting on
issues of general interest is subject to the proviso that they are
acting in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism (see Fressoz
and Roire v. France [GC], no. 29183/95, § 54,
ECHR 1999 I).
- The
concept of private life includes elements relating to a person's
right to their image and the publication of a photograph falls within
the scope of private life (see Von Hannover, 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 photos 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. Similarly, in a case
concerning the publication by President Mitterrand's former private
doctor of a book containing revelations about the President's state
of health, the Court held that “the more time that elapsed, the
more the public interest in discussion of the history of President
Mitterrand's two terms of office prevailed over the requirements of
protecting the President's rights with regard to medical
confidentiality” (see Editions Plon v. France,
no. 58148/00, § 53, ECHR 2004-IV) and held that there had
been a breach of Article 10.
- While
reporting and commenting on court proceedings, provided that they do
not overstep the bounds set out above, contributes to their publicity
and is thus perfectly consonant with the requirement under Article 6
§ 1 of the Convention that hearings be public, it is to be noted
that the public nature of court proceedings does not function as a
carte blanche relieving the media of their duty to show due
care in communicating information received in the course of those
proceedings (see Council of Europe Recommendation No. Rec(2003)13
on the provision of information through the media in relation to
criminal proceedings; paragraphs 34 and 35 above). In this
connection, the Court notes that the Finnish Guidelines for
Journalists, as in force at the relevant time, stated that the
publication of a name and other identifying information in this
context was justified only if a significant public interest was
involved (see paragraph 32 above).
- The
Court observes at the outset that the 1997 article recounted the
facts of a criminal case pending before the District Court in which X
was a defendant. The pictures of X were accompanied by a question
(see paragraph 8 above): “It seemed legal, but ... a woman
entrepreneur cheated to obtain a pension of over 2 million marks?”
Reading the 1997 article as a whole, the Court cannot find that this
statement was excessive or misleading as it was clearly phrased as a
question. Furthermore, it is of importance that the depicted events
and quotations in the article were taken from the public prosecutor's
bill of indictment, which had become a public document the moment it
was received by the District Court. In this case it is not in dispute
that the reporting on the criminal case was based on facts. The
article stated that charges had been brought against X and that the
case was pending before the District Court.
- There
was no connection between the earlier article and the 1997 article
other than the fact that they were about the same person. The
situation described in the earlier article did not come within the
sphere of any public debate. That being said, in the earlier article
the applicant had willingly shared with the readers her personal
experiences and had consented in this connection to having her
photograph published. The 1997 article must be considered to have
reproduced an article which was irrelevant to the subject under
discussion, giving X's name and picture, which were thereby expressly
communicated to the general public. It is however not for this Court,
any more than it is for the national courts, to substitute its own
views for those of the press as to what techniques of reporting
should be adopted by journalists (see Jersild v. Denmark,
23 September 1994, § 31, Series A no. 298).
For the sake of clarity, it is not the initial publication of
that article which is before the Court but its use as an illustration
in the 1997 article.
- The Court can accept that the purpose of the 1997
article was to contribute to a public discussion. The criminal case
brought against X was selected as an example illustrating the
problems involved. While it is perfectly legitimate to use individual
cases to highlight a more general problem, the question is whether
the applicants went too far when they communicated X's identity to
the public. It is plain that X was not a public figure or a
politician but an ordinary person who was the subject of criminal
proceedings (see Schwabe v. Austria, 28 August 1992, §
32, Series A no. 242 B). The fact that she ran a relatively
small cleaning firm and had given an interview eight years previously
to a magazine, which had come about in circumstances apparently not
discussed during the domestic proceedings or at any length before the
Court, does not mean that she had knowingly entered the public arena
(see, mutatis mutandis, Fayed v. the United Kingdom, 21
September 1994, § 75, Series A no. 294 B).
X's status as an ordinary person enlarges the zone of interaction
which may fall within the scope of private life. The fact that she
was the subject of criminal proceedings cannot remove from her the
protection of Article 8 (see Sciacca v. Italy, no. 50774/99,
§ 28-29, ECHR 2005 I).
- In
order to assess whether the “necessity” of the
restriction of the exercise of the freedom of expression has been
established convincingly, the Court must examine the issue
essentially from the standpoint of the relevancy and sufficiency of
the reasons given by the Supreme Court for requiring the applicants
to pay compensation to X. The Court must determine whether the
applicants' liability in damages struck a fair balance between the
public interest involved and X's interests and whether the standards
applied were in conformity with the principles embodied in Article 10
(see Nikula v. Finland, cited above, § 44).
- The
Court considers that the general subject matter which was at the
heart of the article concerned – namely, the abuse of public
funds – was a matter of legitimate public interest, having
regard in particular to the considerable scale of the abuse. From the
point of view of the general public's right to receive information
about matters of public interest, and thus from the standpoint of the
press, there were justified grounds supporting the need to encourage
public discussion of the matter in general.
- The
Court observes that it is not evident that the Supreme Court in its
analysis as to whether the applicant's privacy had been invaded
attached any importance to the fact that the information given was
based on a bill of indictment prepared by the public prosecutor and
that the article clearly stated that the applicant had merely been
charged.
- Nor
is it apparent what significance the Supreme Court attached to the
publication of X's photographs together with her name. The
publication of a photograph must, in the Court's view, in general be
considered a more substantial interference with the right to respect
for private life than the mere communication of the person's name. As
the Court has held, although freedom of expression also extends to
the publication of photos, this is an area in which the protection of
the rights and reputation of others takes on particular importance
(see Von Hannover, no. 59320/00, §§ 50-53 and
59, ECHR 2004 VI). Nor did the Supreme Court analyse the
significance of the fact that the photographs had been taken with the
applicant's consent and with the intention of their being published,
albeit in connection with an earlier article and a different context.
- Having
regard to the foregoing the Court concludes that the grounds relied
on, although relevant, were not sufficient to justify the
interference with the applicants' right to freedom of expression, in
terms of a “pressing social need”.
- 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
- Under
the head of pecuniary damage the applicants
claimed 9,179.68 euros (EUR) broken down into EUR 4,791.74 for
the compensation they had been ordered to pay X for suffering
(including statutory interest) and EUR
4,387.94 for the legal costs they had been ordered to reimburse to X.
Both sums had been paid by the third
applicant.
- Under
the head of non-pecuniary damage the first and the second
applicants claimed EUR 8,000 each.
- The
Government considered that the applicants may be entitled to
reimbursement of the compensation and the legal costs paid to X. The
claim for non-pecuniary damage was excessive as to quantum.
The award should not exceed EUR 2,500 each.
77. The
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage. Consequently, there is
justification for awarding EUR 9,179 under
that head to the third applicant who had paid the total sum.
- The
Court accepts that the first and the second applicants have also
suffered non-pecuniary damage, such as distress and frustration
resulting from the obligation to pay compensation etc., which is not
sufficiently made good by the findings of violation of the
Convention. Making its assessment on an equitable basis, the Court
awards them EUR 5,000 each under this head.
B. Costs and expenses
- The
applicants claimed EUR 10,491.35 as compensation for their costs and
expenses in the domestic proceedings broken down as follows:
-
EUR 1,118.11 paid by the second applicant's
insurance company and policy holder's excess plus VAT EUR 929.90 paid
by the second applicant as regards the District Court proceedings;
-
EUR 2,318.02 the third applicant's costs in
the District Court and the Court of Appeal;
-
EUR 423.41 paid by the second applicant's
insurance company and EUR 77.36 paid by the second applicant
as regards the Court of Appeal proceedings;
-
EUR 134.55 and EUR 2,745 the third
applicant's costs in the Court of Appeal and the Supreme Court
respectively;
-
EUR 2,201.17 paid by the second applicant's
insurance company and EUR 543.83 paid by the second applicant.
The
applicants claimed EUR 4,000 (inclusive of
VAT) for the costs incurred before the Court.
- The
Government submitted that only one complaint had been declared
admissible, and thus, any reimbursement should be adjusted
accordingly. The applicants had not, for the most part, specified the
costs of each item incurred in the domestic proceedings or in the
proceedings before the Court. Furthermore, the hours used for each
measure had not been specified but the measures had only been listed
for each day. This made it difficult to estimate the workload needed
for the preparation of the case and the hourly rate charged.
Therefore, the Government left it to the Court's discretion whether
the applicants had submitted the requisite documents. As to the
domestic proceedings, the payments by the second applicant's
insurance company should not be compensated. The VAT should not be
compensated as it was a company which had paid it. In sum, the claim
for costs incurred in the national proceedings and in the proceedings
before the Court were excessive as to quantum. The total
amount should not, in any case, exceed EUR 5,500 (inclusive of
value-added tax).
- The
Court reiterates that an award under this head may be made only in so
far as the costs and expenses were actually and necessarily incurred
in order to avoid, or obtain redress for, the violation found (see,
among other authorities, Hertel v. Switzerland,
judgment of 25 August 1998, Reports 1998-VI, p. 2334, §
63). In the present case, regard being had to the information in its
possession and the above criteria, the Court considers it reasonable
to award the total sum of EUR 9,800 (inclusive of VAT) for costs and
expenses in the domestic proceedings and the proceedings before the
Court.
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
1. Holds that there has been a violation of
Article 10 of the Convention;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final according to Article 44 § 2
of the Convention, the following amounts:
(i) EUR
9,179 (nine thousand one hundred and
seventy-nine euros) to the third applicant, plus any tax that may be
chargeable, in respect of pecuniary damage;
(ii) EUR
5,000 (five thousand euros) each to the first and the second
applicants, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(iii) EUR
9,800 (nine thousand eight hundred euros) to the applicants
jointly, plus any tax that may be chargeable to the applicants,
in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants'
claims for just satisfaction.
Done in English, and notified in writing on 10 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
