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FOURTH SECTION
CASE OF EERIKÄINEN AND OTHERS v.
FINLAND
(Application no. 3514/02)
JUDGMENT
STRASBOURG 10 February 2009
FINAL
13/03/2009
This judgment 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
1. 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.
2. 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.
3. The applicants
alleged a violation of Article 10 of the Convention.
4. By a decision of 26
September 2006, the Court declared the application
partly admissible.
5. 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).
6. 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
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.”
14. X applied for leave
to appeal to the Supreme Court (korkein oikeus, högsta
domstolen).
15. 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.”
16. 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.
17. 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
18. 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).
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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
25. 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.”
26. 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.”
27. 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.”
28. 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.
29. 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.
30. 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.
31. 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
32. 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).
33. 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
34. 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.”
35. 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
36. The European
Federation of Journalists submitted the following.
37. 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.
38. 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.
39. 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.
40. 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.
41. 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
42. 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
43. 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).
44. 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.
45. 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.
46. 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.
47. 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
48. 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.
49. 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.
50. 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.
51. 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.
52. 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.
53. 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.
54. 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.
55. 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.
56. 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
57. 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
58. 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
59. 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).
60. 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).
61. 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).
62. 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.
63. 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).
64. 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.
65. 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.
66. 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).
67. 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).
68. 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.
69. 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.
70. 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.
71. 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”.
72. There has therefore
been a violation of Article 10 of the Convention.
II. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
73. 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
74. 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.
75. Under the head of
non-pecuniary damage the first and the second
applicants claimed EUR 8,000 each.
76. 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.
78. 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
79. 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.
80. 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).
81. 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
82. 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;
2. 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;
3. 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
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