In recent years, Icelandic courts have struggled to apply standards and methodology developed by the European Court of Human Rights (ECtHR) in cases regarding the balancing of freedom of expression and rights to private life.
The cases have generally involved Icelandic courts placing too heavy a burden on media and reporters, limiting their scope of freedom of expression to protect privacy rights. The latest case against Iceland, Egill Einarsson v. Iceland, is yet another loss for the state party, but this time for different reasons.
The applicant is a well know pop culture figure in Iceland over the last decade. His high profile is not least raised on alter-egos that have been the face of many of his professional endeavours. Under these he has expressed controversial views which has been perceived by some as degrading towards women and even to encourage sexual violence. He was accused of rape by an 18 year old woman in December 2011. In early November 2012, all charges against him were dropped as the evidence against him was found insufficient. He appeared in a front-page newspaper interview on 22 November 2012 where he discussed inter alia his feelings about having been accused of rape, and the media coverage of the case. During the time of the investigation he had issued public statements regretting the coverage of the case in media.
On the same day the interview was published, a 21 year old man in Reykjavik reused and distorted the front-page picture of the applicant. He did this by drawing an upside down cross on the applicant´s forehead, wrote the word “aumingi” (“loser”) across the picture, and added the caption “fuck you rapist bastard”. He then shared the picture on his Instagram account where he had 100 “friends” or followers, but was likely set to an ‘open’ account setting, allowing every user of the social media platform to access the picture.
The following day the distorted picture appeared in the media. The applicant revealed that he intended to press charges against four persons for defamation due to their expressions or comments online following the interview. He lodged cases against two people, one regarding the disputed case, and another against a woman whose comments on Facebook were found to have been defamatory against the applicant by the Supreme Court in December 2014. The applicant has lodged a separate complaint to the ECtHR in relation to his case against the woman that is now pending.
In the disputed case the core issue for the Icelandic Supreme Court was to examine the competing rights of the applicant’s right to respect for his private life, and the young man´s freedom of expression due to the publication of the distorted image and the attached captions. In this, the Court did what the ECtHR has found lacking in older cases regarding the balancing of these two rights, and referred to the standards of application developed by the Strasbourg Court. Specifically, the Icelandic Supreme Court stated:
“In resolving whether or not comments or other expression can be considered a culpable allegation in the sense of Article 235 of the General Penal Code, taking into consideration the manner in which the provisions of Article 10 of the European Human Rights Convention have been clarified by the European Court of Human Rights, a position must be taken as to whether the expression involved a value judgement or a factual statement.”
Assessing whether the expression was a value judgement or a factual statement, the Icelandic Supreme Court appeared to have learned from its former lessons and examined the statement in a wider context, not as a stand-alone comment. In this, it noted that the applicant was a public personality and that the expression in question had been a part of a heated societal debate that the applicant had partly instigated with his controversial comments.
In light of this, the Icelandic Supreme Court did not find the expression to be defamatory, although foul and unpleasant. The applicant subsequently lodged a complaint to the ECtHR, stating that the findings of the Supreme Court amounted to a violation of his rights as protected under Article 8.
In its judgement, the ECtHR agreed that the case required an examination of whether a fair balance has been been struck between the applicants´ right to the protection of his private life under Article 8 of the Convention and the other party’s right to freedom of expression as guaranteed by Article 10 .
The ECtHR continued to discuss that the state has a certain margin of appreciation in assessing the necessity and extent of an interference with the freedom of expression  and that if the domestic authorities “have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts” .
Despite this, and the fact that the Icelandic Supreme Court did apply the criteria in the domestic proceedings, the ECtHR decided to re-assess the application of the standards in the case. It did so in a specific order;
- how well-known the person concerned is,
- the subject matter of the statement and the prior conduct of the person concerned;
- the contribution to a debate of general interest and
- the content, form and consequences of the publication, including the method of obtaining the information and its veracity, and finally
- the distinction between statements of fact and value judgments.
The ECtHR generally agreed with the assessment of the domestic court, except in regards whether or not the statement “Fuck you rapist bastard” had been a statement of fact or a value judgment  despite acknowledging that “the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts” .
In its assessment, the ECtHR found that the Icelandic Supreme Court had accepted that by using the term “rapist” about a named person, that person was being accused of committing rape, but when viewing the term in context, had classified the term as a value judgment. This, the ECtHR found to be outside of the margin of the domestic courts factual appreciation, stating that the term “rapist” was objective and factual in nature  and .
The ECtHR found that the term “rapist” directly referred to a person who had committed the act of rape, which is criminalised under the Icelandic Penal Code. This resulted in the statement “Fuck you rapist bastard” including a statement of fact assigning the status of “rapist” to the person subject of the statement . Further, the ECtHR found that when describing the context of the statement in question, the Icelandic Supreme Court had primarily relied on the applicant’s participation in a ruthless debate which he had instigated. It found that adequate account had not been taken of the chronological link between the publication of the statement on 22 November 2012 and the discontinuance of the criminal cases of alleged rape against the applicant being the subject matter of the magazine interview on 22 November 2012, prompting the publication of the statement in question .
Thus, the ECtHR found that the Icelandic Supreme Court failed to strike a fair balance between the applicant’s right to respect for private life under Article 8 of the Convention and another persons’ right to freedom of expression under Article 10 of the Convention, resulting in a violation of Article 8 of the Convention .
It is noteworthy to mention that the Judgment was decided with the support of 5 judges, against two dissenting opinions of Judge Lemmens and Judge Mourou-Vikström.
In his dissenting opinion, Judge Lemmens stated that he respectfully dissented with the majority of the ECtHR in the case, its examination of the term “rapist“ and the redefinition of the context that the Supreme Court based its findings on. He went on to discuss the re-assessment in the context of the margin of appreciation finding that “[h]aving regard to the subsidiary nature of the European Court’s role, there is […] no “cogent reason” to depart from this assessment. […] [T]he Supreme Court thus struck a fair balance between the competing rights at stake.”
Judge Mourou-Vikström also based her dissent on the redefinition of the context of the term, stating that “[t]he applicant’s public, controversial and provocative statements shifted the boundary between an allegation of fact and a value judgment.” In light of this, she said that the domestic courts were entitled to consider that the impugned comments “referred more generally to the views aired by the applicant in the past.” She agreed with Judge Lemmens that no violation had taken place.
The Judgement provides a somewhat unclear message as regards the role of the ECtHR in re-assessing the domestic application of the criteria on the balancing between rights protected under Article 8 and Article 10. As repeatedly stated in the Judgement, such assessment should be left to the domestic courts, unless a pressing need arises for the ECtHR to re-examine the application. However, in the present case, the Court did not provide any such reasoning for its decision to reassess the distinction between a value judgment and a statement of facts.
This is point addressed in clear terms in Judge Lemmens’ dissent (paragraph 3). His argument that in light of the Icelandic Supreme Court´s application of the criteria, it was not for the ECtHR to re-assess the subjective meaning of the disputed term, is compelling. It has a strong foundation in the subsidiarity principle, and the margin of appreciation awarded to the states in cases such as the present one as he refers to in his dissenting opinion.
It is also of interest that the ECtHR did not only decide to redefine the term “rapist” in a subjective sense, but also with regard to the “context” of the utterance in question. By finding that the “context” that the term was discussed in should only reflect the short timespan from the applicant learning that he would not be prosecuted for rape until the time that the impugned comments where uploaded to social media, it is hard to find any room for the subsidiarity principle in the ECtHR´s reasoning in the Judgement.
Further, it is of interest that the ECtHR decided to grant such weight on the subjective meaning of the term “rapist” when compared to its recent findings in the case of Traustason v Iceland. In that case the Icelandic Supreme Courts assessment of terminology regarding police “investigation” or “examination” was found to be of little bearing as the public would not be able to distinguish between these, despite the terms having different meanings in legal terms.
Finally, on somewhat of a side note, the ECtHR´s statement about the internet as a platform raises a special interest. The case regards the expression of an individual that had no commercial interest or as a media or public persona, and was using what he presumed to be a personal social media platform. In light of this background, the ECtHR statement about the nature of the internet and its potential harms is noteworthy.
It states that “the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press” and continues to refer to the findings in the case of Delfi v. Estonia [46)]. In Delfi, the ECtHR found that an online news platform, that had a commercial interest in the online distribution of material, could be held liable for malicious third party material. The reference is likely intended to address the potential infliction of harm of damaging material online due to the vast scope of possible online distribution, even if the ECtHR does not discuss the issue further in the Judgement. As social media platforms increasingly serve as platforms for heated societal debates in Iceland as other states, it is not impossible to assume that the impact of Judgement will be a form of temperature control for public debate in those spheres.
María Rún Bjarnadóttir, Doctoral Researcher, Sussex University.
Disclosure: The author has advised the Icelandic Government in a number of cases regarding freedom of expression before the ECtHR, including in the cases of Traustason v. Iceland and Einarsson v. Iceland.