FIFTH SECTION
Application no. 22302/10
Raja ARLEWIN
against Sweden
lodged on 18 March 2010
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Raja Arlewin, is a Swedish national who was born in 1970 and lives in Stockholm. He was represented before the Court by Mr Kenneth Lewis and Mr Jan Södergren, two lawyers practising in Stockholm.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 22 April 2004 the commercial TV channel TV3 broadcast an episode of a TV show entitled “Insider”, in which it was claimed that “shady transactions and shady characters” were revealed. The show was broadcast live with a few recorded features. In the show, the applicant, who was completely unknown to the broader public, appeared in pictures and was mentioned by name. He was singled out as the central figure of organised crime within media and advertising and as being guilty of several fraud offences and other economic offences. The programme was repeated on 25 April and 17 September 2005.
The TV programme was produced by the Swedish company Strix Television AB. It was sent by a satellite link to the London-based company TV3 Broadcasting Group Limited (TV3 Ltd) and from there sent unaltered to a satellite which transmitted the programme to the Swedish audience. The programme was viewable less than one second after it had been sent by the satellite link. The show was produced in Sweden, by Swedish-speaking staff and for a Swedish-speaking audience. It was sponsored by companies competing on the Swedish market. The anchorman of the show, A, is a celebrity and a well established TV personality; he is also the CEO of the abovementioned Strix Television AB. The show had a long run and was watched by many viewers.
On 4 October 2006 the applicant brought a private prosecution against A for gross defamation and sued A for damages, claiming 250,000 Swedish kronor (SEK). He alleged that A was responsible for the content of the programme since he had failed in his duty to appoint an editor for the programme and because he had been its anchor. The applicant invoked Chapters 5 and 6 of the Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlagen SFS 1991:1469, hereinafter the Act) concerning freedom of expression offences and Chapter 5 of the Penal Code (Brottsbalken) as well as Articles 6 § 2, 8 and 13 of the Convention. In the latter respect, he argued that his appearance in the show concerned his right to privacy as well as his right to be presumed innocent and that a decision to dismiss his claims would constitute a violation of his right to an effective remedy. The applicant submitted a legal opinion stating that it would be impossible, or at least not useful, to bring an action in the United Kingdom in the present case since the damages flowing from the TV programme at issue had not occurred in the UK.
A disputed the claim on the grounds, inter alia, that he was not the responsible editor of the show and that he enjoyed the freedom to supply information as provided for under Chapter 10, section 2 of the Act and as clarified by the Supreme Court in the case NJA 2005 p. 884 (see below).
On 20 May 2008 the Stockholm District Court (Stockholms tingsrätt) dismissed the claim in so far as it was based on the Act. It referred to the Supreme Court judgment in an almost identical case, NJA 2002 p. 314 (see below), and held that Chapters 1-9 of the Act were not applicable to the TV programme since it could not be regarded as emanating from Sweden. This was because the programme was first sent by a satellite link to TV3 Broadcasting Group Limited in London, which company was responsible for the programme content, and thereafter transmitted onwards to a satellite, which in turn transmitted the programme to Sweden. As Chapters 1-9 of the Act were not applicable, A could not be held responsible for the programme content under Chapter 6 of the Act. The court further held that the applicant’s claims under the Penal Code were to be determined following oral hearings in the case and that Chapter 10, section 2, of the Act, concerning the protection of informants, compared with the case NJA 2005 p. 884 (see below), was to be regarded in that context. Lastly, the court found reasons to make the parties aware of the Supreme Court judgment in the case NJA 2007 p. 747 (see below) concerning the horizontal effects of the Convention.
The applicant appealed and submitted, inter alia, the following. All companies involved in the case were Swedish. Moreover, although the receiving company in London, named Viasat AB, had acquired the right to transmit the show from the Swedish company TV3 AB, it had no impact over or responsibility for the programme offer. Having regard to the above, the offence committed against the applicant through the programme could not be examined by British courts. The applicant also submitted that Swedish courts were competent to examine the case under the Council Regulation 44/2001 (the Brussels I Regulation). A contested the arguments and submitted that it was the company Viasat Broadcasting UK Ltd, whose seat was in the UK, which was responsible for the programme activities and which decided on its final content.
On 17 February 2009 the Court of Appeal (Svea hovrätt) upheld the District Court’s decision. It held, inter alia, that the burden of proof concerning the applicability of the Act rested on the applicant and that he had not, in response to A’s refutation, established that the decisions concerning the programme content were taken in Sweden. Consequently, Chapters 1-9 of the Act were not applicable in the case. The court further held that the material before it suggested nothing but that it was possible for the applicant to bring charges before a British court.
The applicant appealed and referred to, inter alia, his earlier submissions. In addition, he requested a question concerning the interpretation of the Brussels I Regulation to be referred to the European Court of Justice (ECJ) for a preliminary ruling. According to the applicant, the regulation entitled a person claiming non-contractual damages to bring actions where the harmful event had occurred. In the present case, the harmful event had occurred in Sweden and the applicant thus should have had the right to bring his action before the Swedish courts. Consequently, the position hitherto taken by the Swedish courts ran contrary to Community law.
On 21 September 2009 the Supreme Court (Högsta domstolen) rejected the applicant’s referral request and refused leave to appeal in the case. It held that since the District Court had found itself competent to examine the applicant’s claims in so far as they were based on grounds other than the Act, there was no reason to request a preliminary ruling from the ECJ.
The applicant subsequently withdrew his remaining claims before the District Court. On 17 November 2009 the District Court struck the case out of the list and ordered the applicant to pay A’s legal costs and expenses.
B. Relevant domestic law and practice
The Fundamental Law on Freedom of Expression (SFS 1991:1469) provides in as far as relevant:
Chapter 1, section 1
“... References in the Fundamental Law to radio programmes shall apply also to television programmes and to the content of other certain transmissions of sound, pictures or text made using electromagnetic waves, as well as to the content of certain public playbacks from a database. ...”
Chapter 1, section 2
“Every Swedish citizen is guaranteed the right to communicate information on any subject whatsoever to authors and other originators, as well as to editors, editorial offices, news agencies and enterprises for the production of technical recordings for publication in radio programmes or such recordings. He or she also has the right to procure information on any subject whatsoever for such communication or publication. No restriction of these rights shall be permitted other than such as follows from this Fundamental Law.”
Chapter 1, section 6
“This Fundamental Law applies to transmissions of radio programmes which are directed to the general public and intended for reception using technical aids. [...]
In the case of radio programmes transmitted by satellite and emanating from Sweden, the provisions of this Fundamental Law concerning radio programmes in general apply. ...”
Chapter 5, section 1
“The acts listed as freedom of the press offences in Chapter 7, Articles 4 and 5 of the Freedom of the Press Act shall be regarded as freedom of expression offences if they are committed in a radio programme or technical recording and are punishable under law. ...”
Chapter 6, section 1
“Liability under penal law for freedom of expression offences committed in a radio programme or technical recording rests with the responsible editor. If a deputy is acting in place of the responsible editor, liability rests with the deputy. ...”
Chapter 6, section 2
“Liability under penal law for freedom of expression offences which would otherwise rest with the responsible editor rests with the person responsible for appointing the responsible editor if:
- there was no qualified responsible editor at the time when the offence was committed; or
...
- information concerning the responsible editor has not been kept available to the general public in the prescribed manner. ...”
Chapter 10, section 1
“The provisions laid down in Chapters 1 to 9 and Chapter 11 also apply to technical recordings produced abroad and delivered for dissemination in Sweden. The provisions otherwise laid down concerning the person who caused the recording to be made shall apply instead in this connection to the person who delivered it for dissemination in Sweden.
The provisions of Chapter 13, Article 6 of the Freedom of the Press Act shall however apply in relevant parts in respect of the right to communicate and procure information and intelligence for publication and the right to anonymity. In this connection, the reference to Chapter 1, Article 1, paragraphs three and four of the Freedom of the Press Act shall relate to Chapter 1, Article 2 of this Fundamental Law ...”
Chapter 10, section 2
“Whatever applies under Article 1 in respect of the right to communicate and procure information and intelligence and the right to anonymity applies also to radio programmes broadcast from transmitters outside Sweden and to technical recordings not delivered for dissemination in Sweden, regardless of whether the recording was made in Sweden or abroad. ...”
The relevant provisions of the Freedom of the Press Act (SFS 1949:105) include the following:
Chapter 7, section 4
“With due regard to the purpose of freedom of the press for all under Chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable under law:
...
14. Defamation, whereby a person alleges that another is criminal or blameworthy in his or her way of life, or otherwise communicates information liable to expose another to the contempt of others, and, if the person defamed is deceased, the act causes offence to his or her survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate information in the matter, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion;
...”
Chapter 13, section 6
“In the case of matter which is printed abroad and published in the Realm, but not intended primarily for dissemination within the Realm, and for which no certificate of no legal impediment to publication exists, the provisions of Chapter 1, Article 1, paragraphs three and four, concerning the communication and procurement of information and intelligence for publication apply ...”
The Penal Code (Brottsbalken, SFS 1962:700) provides in as far as relevant:
Chapter 5, section 1
“A person who points out someone as being a criminal or as having a reprehensible way of living or otherwise furnishes information intended to cause exposure to the disrespect of others, shall be sentenced for defamation to a fine.
If he was duty-bound to express himself or if, considering the circumstances, the furnishing of information on the matter was defensible, or if he can show that the information was true or that he had reasonable grounds for it, no punishment shall be imposed.”
Chapter 5, section 2
“If the crime defined in Section 1 is regarded as gross, a fine or imprisonment for at most two years shall be imposed for gross defamation. In assessing whether the crime is gross, special consideration shall be given to whether the information, because of its content or the scope of its dissemination or otherwise, was calculated to bring about serious damage.”
C. Domestic practice concerning freedom of expression offences
A Supreme Court judgment of 5 June 2002 (NJA 2002 p. 314) concerned an action for gross defamation against two individuals and Strix Television AB due to statements made about the plaintiff in a TV programme which had been broadcast by TV3. The programme had been produced by Strix Television AB for TV3 Ltd. The two individuals were employees of Strix Television AB and had contributed to the programme as well as been its anchors. The programme had been transmitted directly from a studio in Stockholm by a communication satellite to TV3 Ltd’s programme control in London and from there, unaltered, via satellite back to Sweden. The two individuals requested the courts to dismiss the claim on the grounds that they could not be held responsible for the programme content since the Act was applicable and they enjoyed the freedom to supply information as provided for under Chapter 10, section 2 of the Act. The Supreme Court initially pointed out that Chapters 1-9 of the Act covered broadcasts via satellite in so far as the broadcasts emanated from Sweden within the meaning of Chapter 1, section 6 of the Act. This was the case, the Supreme Court held, if the programme activity was conducted in Sweden. The question of where the programme activity was conducted, in turn, was dependent on where the decisions concerning the programme content were taken. In that case, the programme could not be regarded as having emanated from Sweden, as the company responsible for the programme activity was TV3 Ltd and because the programme had been sent to that company before being linked to the satellite transmitting it to the Swedish public. Consequently, Chapters 1-9 of the Act were not applicable to the case. However, the court continued, the issue of whether the defendants were protected as informants under Chapter 10, section 2 of the Act was not an issue of a process barrier and was therefore to be examined in the continued proceedings on the substance of the case in the lower legal instances. The court therefore rejected the defendants’ request to dismiss the plaintiff’s claim.
Following proceedings in the District Court and the Court of Appeal, the abovementioned issue concerning informant protection was brought before the Supreme Court. In a judgment dated 20 December 2005 (NJA 2005 p. 884) the court held, inter alia, that a person was protected under the provision concerning freedom of communicating information under Chapter 10, section 2, of the Act if he had given information for publication within the meaning of Chapter 1 section 2 of the Act and that this was regarded as being the case even when the programme had been sent to a company abroad before being transmitted to the Swedish public via satellite. Based on this reasoning, the court found that the two individuals were covered by the provision at issue and that they therefore could not be held liable for any information given by them in the programme. The court added that this conclusion was valid regardless of the fact that no individual could be held responsible for the programme content under Chapter 6 of the Act.
D. Domestic practice concerning compensation for violations of the Convention
A Supreme Court decision of 29 October 2007 (NJA 2007 p. 747) concerned a claim for damages brought by an individual against a private insurance company. The claim concerned an alleged violation of Article 8 of the Convention related to secret surveillance undertaken in respect of the plaintiff. The Supreme Court noted that the Convention did not impose duties on individuals. Even if the State may have positive obligations under the Convention, the court continued, in view of the rule-of-law-value held by the principle of predictability, an individual could not be obliged to compensate another individual directly on the basis of the Convention.
COMPLAINTS
The applicant complains that the allegations made in the TV programme violated his right to privacy as well as his right to be presumed innocent until proven guilty in accordance with law and that the State did not provide him with sufficient protection against these violations. The applicant argues, inter alia, that the Swedish courts’ findings in his case against A run contrary to Community Law, since Article 5:3 and 4 in the Brussels I Regulation provide for a choice for an aggravated party to bring legal action in the Member State where the harmful event occurred. He also submits that the Supreme Court did not, on the request of the applicant, refer a question to the European Court of Justice although it was under an obligation to do so.
The applicant also complains that the Swedish courts refused to examine the applicant’s case on the merits and failed to provide the applicant with an effective remedy against the violating act of the defendant. Concerning the alleged possibility of bringing action before courts in the UK, the applicant argues, inter alia, that a British court would not be able to award him damages for any publication which occurred in Sweden and that the burden of proof concerning such a possibility should rest on the Government. He also argues that even if there were a remedy available to the applicant in the UK, the practical and economic obstacles for a Swedish applicant to bring a legal suit abroad would render the remedy inefficient. In any event, such a remedy would not eliminate the Swedish State’s obligation under the Convention to provide the applicant with sufficient protection and effective legal remedies in Sweden.
The applicant invokes Articles 6, 8 and 13 of the Convention.
QUESTIONS TO THE PARTIES
1. Did the State comply with its positive obligation under Article 8 of the Convention to provide the applicant with sufficient protection against the alleged act of defamation committed against him in the TV programme at issue?
2. Did the applicant have effective access to a court in the present case as required by Article 6 § 1 of the Convention?
3. Was the applicant provided with an effective remedy before a national authority within the meaning of Article 13 of the Convention in the present case?
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