Arlewin v. Sweden

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law 194

March 2016

Arlewin v. Sweden - 22302/10

Judgment 1.3.2016 [Section III]

Article 6

Criminal proceedings

Article 6-1

Access to court

Swedish courts’ refusal to exercise jurisdiction in respect of defamation proceedings concerning a television broadcast from a foreign country: violation

Article 1

Jurisdiction of states

Jurisdiction of Sweden in respect of defamation proceedings brought in respect of a television programme broadcast from a foreign country

Facts – In 2004, in a programme broadcast on Swedish television, the applicant was accused of being a central figure in organised crime in the media and advertising sector and of fraud and other economic offences. In 2006 he brought a private prosecution for gross defamation against X, the anchorman of the show, before the Swedish courts. His claim was rejected for lack of jurisdiction on the grounds that the broadcast had been transmitted by a company registered in the United Kingdom and was thus considered not to have emanated from Sweden. The applicant was later convicted of various offences, including those he had been accused of in the television programme, and sentenced to five years’ imprisonment.

In his application to the European Court, he complained under Article 6 of the Convention that he had been deprived of access to court, in that Sweden had failed to provide him with a remedy to protect his reputation.

Law – Article 6 § 1: The core question was whether Sweden was under an obligation to provide the applicant with a remedy for the alleged infringements of his privacy rights or whether the fact that another State could provide him with such remedies relieved Sweden from that obligation. It was not in dispute that the broadcast of the programme fell within the scope of the applicant’s private life, within the meaning of Article 8 of the Convention. Since the defamation proceedings concerned the applicant’s civil rights and obligations, Article 6 § 1 of the Convention was applicable.

The Government raised a preliminary objection that the application was inadmissible ratione personae as it fell outside Sweden’s jurisdiction under Article 1 of the Convention. According to the Swedish courts, it was the United Kingdom, not Sweden, which had jurisdiction to deal with the applicant’s defamation proceedings as, under the “country of origin principle” laid down by the EU Audiovisual Media Services Directive* (“AVMSD”), jurisdiction had to be determined primarily with reference to the country where the broadcaster’s head office was located and where its editorial decisions were taken.

The Court rejected that interpretation after noting that in a case concerning the similarly worded predecessor to the AVMSD (the Television without Frontiers Directive of 1989 (89/552/EEC)), the European Court of Justice had found that, under certain conditions, a State could take measures against a television broadcast although it was not designated as the broadcasting – and thus jurisdictional – State.** The same reasoning could be presumed to apply also to the AVMSD. Under EU law, it was thus not the AVMSD, but rather the Brussels I Regulation that determined the country of jurisdiction when an individual brought a defamation claim against a journalist or a broadcasting company. Under the Regulation both the United Kingdom and Sweden had jurisdiction. In fact, the harmful event could be argued to have occurred in either country as, although the television programme had been broadcast from the United Kingdom where the broadcasting company was registered and domiciled, X was domiciled in Sweden and the alleged injury to his reputation and privacy had manifested itself there. The Court therefore considered that the Swedish Government had not shown that Swedish jurisdiction was barred by a binding provision of EU law.

The Court further noted that the content, production, broadcasting of the television programme as well as its implications had very strong connections to Sweden. There had, therefore, been a prima facie obligation on Sweden to secure the applicant’s right of access to court. The fact that the applicant may have had access to a court in a different country did not affect Sweden’s responsibility under Article 1 of the Convention, but was rather a factor to be taken into consideration when determining whether the lack of access to a Swedish court had been proportionate.

Irrespective of whether the United Kingdom courts had jurisdiction, the Court observed that, except for the technical detail that the broadcast had been routed via the United Kingdom, the programme and its broadcast had been entirely Swedish in nature. In these circumstances, the respondent State had an obligation, under Article 6, to provide the applicant with effective access to court, and instituting defamation proceedings before the British courts was not a reasonable and practicable alternative for him. By failing to provide such access, the domestic courts had impaired the very essence of the applicant’s right of access to court as the legal limitations on that access could not be considered proportionate.

Accordingly, the Court rejected the Government’s objection that the application should be declared inadmissible for being incompatible ratione personae with the Convention and found a violation of Article 6 § 1.

Conclusion: violation (unanimously).

Article 41: EUR 12,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See the Factsheet on Extra-territorial jurisdiction)

* Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services.

** Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and TV-Shop i Sverige AB, joined cases C 34/95 to C 36/95, judgment of the CJEU of 9 July 1997.

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