In the case of Olafsson v Iceland ( ECHR 259) the Court of Human Rights held that the Icelandic courts were wrong to hold a website editor liable for publishing allegations made by two sisters that their relative, A, who was standing for election for the Constitutional Assembly had sexually abused them when they were children.
In November 2010, Pressan, a web-based media site, published a series of articles about the sisters’ allegations against A. The articles were based on interviews with the sisters and a letter the sisters had previously sent to the police and posted on their website. A had been contacted, and his response, in which he denied the allegations, were reported in the articles.
In January 2011, Pressan published the fact that the sisters had received a letter from A’s lawyer offering to settle the matter, failing which A would bring defamation proceedings against them. Once again, the sisters were interviewed for the article and A’s rejection of the allegations was reported.
A brought defamation proceedings against the editor of Pressan in Reykjavik, where the Supreme Court ultimately found the statements in the articles to be defamatory. The editor, the Supreme Court held, had a supervisory obligation to conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. Pressan had reported allegations of criminal conduct, without any further information, for which A had never been found guilty nor been under investigation for. The fact that Pressan had asked A for comment did not change the Supreme Court’s reasoning.
The editor appealed to the Court, arguing that the domestic judgment violated his free speech rights under Article 10.
The Court began by noting that the story concerned the serious topic of sexual violence against children. The general public clearly had a legitimate interest in being informed about A’s running for general election and such serious matters. By running for office, the Court reminded, A must be considered to have inevitably and knowingly entered the public domain and laid himself open to closer scrutiny of his acts than a private individual would expect.
Turning to the way Pressan obtained information, the Court accepted that the journalist had tried to establish the sisters’ credibility and the truth of the allegations by interviewing several relevant persons, namely, the sisters, A’s son, the police, one of the sisters’ employers, another alleged victim and people mentioned in the sisters’ letter. The journalist had also offered A the opportunity to comment, both for the initial and later articles. The Court reiterated that a general requirement for journalists to systematically and formally distance themselves from the content of a quotation that might damage someone’s reputation was not reconcilable with the press’s role of providing information on current events, opinions, and ideas. The Court noted that
“punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so”.
The Court accepted that the allegations were of such nature and gravity as to be capable of causing harm to A’s honor and reputation. However, it was clear that the statements originated not from the editor or journalist but from the sisters. The quotations A complained of were a verbatim rendering of the sister’s statements in their letter, which had been published on their own website before the articles were published on Pressan.
Finally, the Court pointed out that while A had chosen to proceed against the editor only, A still had the possibility of bringing defamation proceedings against the sisters.
The interference with Article 10, the Court concluded, was not justified.
The Court’s decisions so far this year leave no room for doubt: domestic European court restrictions on political speech will be subject to strict scrutiny (see our previous posts on cases brought by a Ukrainian politician after being accused of destroying “all the work in Zolotarevka during his four years in office” and a Greek actress appointed to the subsidies advisory board of the Ministry of Culture’s Theater Department after being described as “completely unknown”). This strong defense of Article 10 is a welcome start to 2017, an important year for European national elections.
Ed Klaris is the founding partner of Klaris Law PLLC. Alexia Bedat is an Associate at the firm.