FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3514/02
by Pentti EERIKÄINEN and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 25 January 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Pentti Eerikäinen, is a Finnish national who was born in 1946 and lives in Otava. The second applicant, Mr Matti Paloaro, is a Finnish national, who was born in 1942 and lives in Kylmäkoski. He is the former editor-in-chief of the third applicant, a publishing company named Yhtyneet Kuvalehdet Oy. The applicants were represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is a freelance journalist. In 1997 he wrote an article about criminal proceedings which were then pending before the District Court (käräjäoikeus, tingsrätt) of Turunseutu. A defendant, X, was charged with various counts of tax fraud and aggravated fraud through allegedly deceiving the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) and insurance companies. The article was published in no. 6/97 of the magazine “Alibi”, and entitled: “It seemed legal, but... a woman entrepreneur cheated to obtain a pension of over 2 million marks?” (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. As part of the article, the magazine included a reproduction of an old article with a photograph of X. That article, written by the first applicant, had been published in another magazine several years before.
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, hovrätt), which upheld the judgment on 1 April 1999. X was ordered to reimburse the applicants’ legal costs.
Following the District Court’s judgment in the criminal proceedings 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 against her will, causing her mental suffering. She requested compensation for non-pecuniary damage in the amount of 250,000 Finnish marks (FIM; 42,047 euros (EUR)). In the second scenario, she claimed compensation for the publication of her picture and non-pecuniary damage in the amount of FIM 125,000 (EUR 21,023). She also claimed pecuniary damage in the amount of 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.
On 31 March 1998 the District Court issued its judgment. It 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 further found that other parts of the article were not defamatory. Relying on the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen), the District 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, the District Court found that, having regard to the above, there was no need to adjudicate on her second claim.
The applicants appealed to the Helsinki Court of Appeal, claiming that the District Court should not have based their liability to pay damages on the fulfilment of the constitutive elements of defamation, as X had claimed damages only with reference to the invasion of her privacy. They further denied that the case gave rise to any offence, and relied on their freedom of expression. X also appealed, requesting that the amount of damages be increased.
On 8 December 1999, without holding an oral hearing, the appellate court quashed the judgment, reasoning, inter alia, that:
“... Even though the District Court should have obtained submissions from the parties as to whether the act fulfilled the constitutive elements of an offence on which the District Court would base its decision, this did not affect the result of the case, taking into account that the [applicants’] submissions had been duly considered. ...
... 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 the general interest. 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.”
X applied for leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen).
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 one year and ten months’ imprisonment. She was ordered to pay damages of approximately FIM 2.5 million (EUR 420,270).
On 21 November 2000 the Supreme Court granted her 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 presented by the Court of Appeal, the applicants had not committed defamation. It found, however, that by reproducing a picture from an old article, including a photograph of X, they had violated her right to privacy, and ordered the applicants to pay FIM 20,000 (EUR 3,364) for non-pecuniary damage and to reimburse her legal costs. The court reasoned, inter alia, that:
“... the charges related to [X’s] acts as an entrepreneur in a relatively small cleaning firm. Although the criminal charges concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that it would have been reasonable to reproduce, as part of an article and without [X’s] consent, another article that included [X’s] name and photograph. Although the purpose of the article might have been to draw attention to the abuse of social benefits in general, and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation, an illustration revealing the identity of an accused or convicted private person in a similar position to [X]...”
On 2 November 2001 the applicants requested the Supreme Court to annul its judgment on procedural grounds, claiming that the Supreme Court had based its judgment on points which had not been raised by the claimant.
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.
On 3 March 2003 the Supreme Court dismissed the applicants’ request to annul its judgment.
B. Relevant domestic law
Domestic law
Section 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, as amended by Act no. 969/1995 and in force at the relevant time), provided:
“Everyone shall have the right to freedom of expression. The right to freedom of expression shall entail 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 Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by 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 the current Constitution of 2000 (731/1999, section 12).
Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfriherslag; 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.
Chapter 5, section 6 of the Tort Liability Act (412/1974) 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.
Chapter 27, section 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 dealt with a person’s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, was not to be considered as an invasion of privacy if the reporting was necessary to address a matter of social importance.
According to Government Bill HE 84/1974, information is considered to be part of private life unless it is specifically found not to belong to it. In order for a particular form of conduct to be punishable, it had to be conducive to causing damage or suffering. Such damage also referred to “non-pecuniary damage that may have appeared as harming social relations or prestige”.
In 2000 Chapter 27, section 3a was replaced by Chapter 24, section 8 (531/2000) of the Penal Code. Under the new provision on the invasion 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 an invasion of personal reputation. However, an act shall not constitute an invasion of 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.
Chapter 17, section 6 (571/1948) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that if the issue relates to the quantum of damages and no evidence is available or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum, within reason.
Section 2 of the Act on the Public Nature of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties as well as the nature of th
