On 6 April 2010 the Fourth Section of the European Court of Human Rights (“ECtHR”), presided over by UK Judge Nicholas Bratza, handed down six decisions concerning defamation and privacy prosecutions in Finland. The Fourth Section deals with English cases and its defamation and privacy decisions are of immediate relevance to English lawyers. In addition, these decisions give an interesting insight into the ECtHR’s current approach to privacy and public interest issues.
In Ruokanen v Finland (Judgment of 6 April 2010), the ECtHR held by 5 votes to 2 that there had been no violation of Article 10 in criminal convictions for defamation against the editor and journalist of an article entitled “A Student Raped at the baseball party” following a local baseball team’s victory in the Finnish Championship. The Finnish Court ordered fines of 5460 Euros plus 89,000 Euros compensation.
Although individuals were not named in the article the team was named and therefore all players were identifiable. No attempt was made to contact the baseball players prior to publication of the article. There was no criminal prosecution. The ECtHR held;
“The applicants claimed that they wrote about an issue of public interest, namely about a serious crime that had allegedly been committed by private persons and in respect of which no investigation had been started. However, the Court notes that the applicants did not mention this issue anywhere in the article, failing thus to demonstrate that the issue was of public interest. Moreover, the allegations were of a serious nature and were presented as statements of fact rather than value judgments. As regards the nature and degree of the defamation, the accusations of rape were found defamatory by the domestic courts because the accused were said to have committed a crime (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 66, Series A no. 239). Moreover, nothing in the article indicated that the city officials had tried to conceal the crime imputed to the members of the baseball team.
The article had been based on the victim’s statement which was corroborated by a number of anonymous witnesses. The Court held that the applicants had
failed to take any steps to verify whether the accusation had a basis in fact, although they had the possibility to clarify the issue by contacting the victim, the players and their team.
Overall, the ECtHR concluded that
the alleged rape was presented in the article as a fact although the criminal investigation only started after the publication of the article. Article 6 § 2 requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The Court therefore considers that the article violated the presumption of innocence of the players and defamed them by stating something as a fact which had not yet been established.
The ECtHR decided that the penalties although severe were proportionate and the inference was proportionate with regard to the competing interests at stake.
Judges Bratza and Bianku dissented. Judge Bratza relied on four matters in support of his view that there had been a violation of Article 10. First the fact that the events referred to in the article were clearly matters of public interest, were described in a moderate tone without identifying the student concerned. Second, the article accurately recorded a contemporaneous complaint. Third, when the police did investigate the complaint was not rejected – the investigation stopped because she could not identify the offender or offenders. Finally, he was of the view that the combination of a criminal prosecution and substantial damages was an important factor in assessing proportionality.
This is a powerful dissenting opinion and there is an argument that there was indeed a disproportionate interference with the applicant’s Article 10 rights in this case.
The other five cases were complaints by magazines and journalists about the criminal prosecutions for invasion of privacy in relation to reports of an incident in which a public figure and his girlfriend got into a fight with the man’s wife. The ECHR held that the criminal prosecutions were a breach of Article 10 and awarded compensation in each of the cases.
The articles complained of were about A, who was then Finland’s National Conciliator, and B, his mistress, primarily on the private and professional consequences for A of an incident on 4 December 1996, during which A and B went into A’s home late at night while Mrs A was there, leading to a fight which resulted in B being fined by a court and A being given a conditional prison sentence. The articles named B and showed her picture, and gave other details about her, including her age, where she worked, her family relationships and her relationship with A.
The fives case all related to reports of the same incident: Jokitaipale and Others v Finland – 43349/05  ECHR 444, Iltalehti and Karhuvaara v Finland – 6372/06  ECHR 445; Flinkkila and Others v Finland – 25576/04  ECHR 446; Soila v Finland – 6806/06  ECHR 449 and Tuomela and Others v Finland – 25711/04  ECHR 452
In declaring that the decisions were a breach of article 10 the ECtHR relied upon a number of points common to all five cases;
First the limits of permissible criticism are wider as regards a politician as such than as regards a private individual. However, the freedom of expression has to be balanced against the protection of private life guaranteed by Article 8 of the Convention and the concept of private life covers personal information which individuals can legitimately expect should not be published without their consent and includes elements relating to a person’s right to their image.
Secondly 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.
Thirdly the most important factor here, was that the expression was used in the context of court proceedings, although the public nature of court proceedings does give a carte blanche relieving the media of their duty to show due care in communicating information received in the course of those proceedings.
Fourthly there was no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants nor use of subterfuge or other illicit means.
Fifthly it was clear that B. was not a public figure or a politician but an ordinary person who had been the subject of criminal proceedings (see Schwabe v. Austria, 28 August 1992, § 32, Series A no. 242 B). Her status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life. The fact that she had been the subject of criminal proceedings cannot deprive her of the protection of Article 8. However, B. was involved in a public disturbance outside the family home of A., a senior public figure who was married and with whom she had developed a relationship. Criminal charges were preferred against both of them. They were later convicted as charged. B., notwithstanding her status as a private person, can reasonably be taken to have entered the public domain. For the Court, the conviction of the applicants was backlit by these considerations and they cannot be discounted when assessing the proportionality of the interference with their Article 10 rights.
The sixth factor was that the information concerning B. was essentially limited to her conviction and to facts which were inherently related to A.’s story. Moreover, the disclosure of B.’s identity in the reporting had a direct bearing on matters of public interest, namely A.’s conduct and his ability to continue in his post as a high-level public servant. As B. had taken an active and willing part in the events of 4 December 1996, leading to A.’s conviction and dismissal, her involvement in the events were a matter of public interest.
Finally B’s identity had already been disclosed on prime-time television.
In these circumstances the ECHR held that the privacy convictions were violations of article 10 and awarded compensation and costs to the various applicants.
These decisions seem to us to strike a proper balance between Articles 8 and 10. The “public interest” considerations were overwhelming in these cases and the imposition of penalties on the newspapers that reported the incident were clearly unjustified.