In the case of Salumäki v. Finland ( ECHR 459) the Fourth Section of the Court of Human Rights held that a defamation decision did not violate Article 1o, despite the fact that all the facts in the article in question were true. The article bore an defamatory “innuendo” meaning and applying the Axel Springer criteria, the Court found that the domestic courts had struck a fair balance between the competing interests at stake.
The applicant, Tiina Johanna Salumäki, is a Finnish journalist. On 8 July 2004, the national evening newspaper Ilta-Sanomat published an article written by Ms Salumäki concerning the investigation into a homicide. The front page of the edition carried “The victim of the Vantaa homicide had connections with K.U.?” K.U. was a well-known Finnish businessman. A photograph of K.U. appeared on the same page. Next to the article was a separate column mentioning K.U.’s previous conviction for economic crimes.
The article stated that P.O., who was brutally killed in Vantaa, may have had connections with the businessman K.U. In 2002 P.O. was captured trying to smuggle bags containing money from Estonia into Finland and the police suspected that those bags and their contents belonged to K.U. In that matter, which was pending before the prosecutor for the consideration of charges, P.O. was suspected of an aggravated receiving offence and K.U. of aggravated debtor’s fraud. A part of the homicide investigation was to investigate K.U.’s connection with the victim of the homicide. K.U.’s full name and photograph were included in the article.
On 11 April 2006, the public prosecutor brought defamation charges against the applicant and the newspaper’s editor-in-chief at the time, H.S. K.U. also made a claim for damages and costs. He complained, in particular, about the combination of the photograph and the headline.
On 25 August 2006 the Helsinki District Court convicted the applicant and H.S. of defaming K.U. as the title of their article insinuated that K.U. had been involved in the killing, even though it was made clear much later in the text that the homicide suspect had no connections with K.U. Along with H.S., the applicant was ordered to pay damages of €2,000 and legal costs €1,500 to K.U.
This judgment was subsequently upheld on appeal and the Supreme Court finally refused leave to appeal in November 2008. The applicant Salumäki complains that her conviction amounts to a violation of Article 10 referring in particular to the fact that neither the Government nor K.U. ever alleged at any stage of the defamation proceedings that the information presented in the article was incorrect.
It was clear that there had been an interference with the applicant’s rights under Article 10. This was for a “legitimate aim” (the protection of the rights of others) and was “prescribed by law”  to . As usual in these cases, the important question was whether the interference was “necessary in a democratic society”.
The Court reiterated the need to show a pressing social need and the essential function the press fulfils in a democratic society. It drew attention to the fact that
“The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” 
It then set out what it described as the “relevant principles” to be applied when examining the necessity of an instance of interference with the right to freedom of expression in the interests of the “protection of the reputation or rights of others”, namely those set out by the Grand Chamber in Von Hannover v. Germany (No. 2) (-) and Axel Springer AG v. Germany  to ), namely:
(i) contribution to a debate of general interest;
(ii) how well-known is the person concerned and what is the subject of the report;
(iii) prior conduct of the person concerned;
(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken;
(v) content, form and consequences of the publication; and
(vi) severity of the sanction imposed.
The first four criteria appeared to favour freedom of expression:
- the subject matter of the article was clearly a matter of legitimate public interest.
- K.U., at the time the article was published, had already been in the limelight.
- the details of the article and the photograph had not been obtained by subterfuge or other illicit means. ( to ).
In relation to the fifth criterion, there was no allegation, of factual errors, misrepresentation or bad faith on the part of the applicant.
However, according to the domestic courts, the title created a connection between K.U. and the homicide, implying that he was involved in it. The allegation was defused by the article: but although this stated that the homicide suspect had no connections with K.U., this information only appeared towards the end of the article .
Importantly, the domestic Court found that
“the applicant must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering to K.U.”
The Court noted the principle of presumption of innocence under Article 6 (2) of the Convention and emphasised that this principle
“may be relevant also in Article 10 contexts in situations in which nothing is clearly stated but only insinuated”
In short, the Court held that
“the juxtaposition of two unrelated criminal investigations, with headlines which clearly suggested to the ordinary reader that there was more to P.O.’s murder than what was actually being stated in the text of the articles, was defamatory, implying that K.U. was somehow responsible for P.O.’s murder. It amounted to stating, by innuendo, a fact which was highly damaging to the reputation of K.U”. 
The applicant did not attempt to prove the truth of the insinuated fact and did not plead that the insinuation was a fair comment based on relevant facts.
The Fourth Section held that the domestic courts had examined the conflicting interests and balanced them appropriately . The sanction was reasonable. As a result, the domestic courts struck a fair balance between the competing interests at stake.
This is a surprising decision. The article was on a matter of public interest, all the facts were true and the journalist acted in good faith. Although the headline wrongly implied that K.U. was involved in a homicide, the “antidote” to this allegation was found in the body of the article which specifically stated that the homicide suspect had no connection with K.U.
It is plain that, under English defamation law (even pre-Defamation Act 2013), there would have been no claim: the article must be read as a whole, taking “bane” and “antidote” together and a claim cannot be based solely on a headline (see the well known decision of the House of Lords in Charleston v News Group Newspapers  2 AC 65).
How then did the Court of Human Rights manage to find that there was no violation of Article 10? Once again, the answer appears to be an inappropriate reliance on the Axel Springer criteria for balancing expression and privacy. I have written about this problem before on Inforrm, see my post “Privacy and Defamation, Strasbourg blurs the boundaries”.
Although the Fourth Section’s application of these criteria in the present case was somewhat half-hearted, it does appear to have been led into error. It asked whether K.U. was in the limelight and whether information was obtained by subterfuge but not whether the article was the product of responsible journalism. Although the “ethics of journalism” are mentioned they are not further considered in the judgment. And no allowance was given for “editorial discretion” in the writing of an popular newspaper article of this kind. If this approach had been taken it is difficult to see how the Court could have concluded that the defamation decision against the applicant was “necessary in a democratic society”.
The Court deferred to the views of the domestic Court on the issue of “meaning” – ignoring the very well established principle that
“the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog” by imparting information of serious public concern” (Bladet Tromsø and Stensaas v. Norway ECHR 29, ).
In other words, there is a strong argument that in a case of this kind the Court should not have deferred to the Finnish Courts but should have carried out its own analysis. This would, surely, have led it to the conclusion that the domestic courts had got the balance wrong in this case.