Published on 23 September 2024
SECOND SECTION
Applications nos. 39963/23 and 39984/23
Jessikka Henni Maria ARO against Finland
and Saara Ilona JANTUNEN-PAJU against Finland
lodged on 8 November 2023 and 8 November 2023 respectively
communicated on 6 September 2024
SUBJECT MATTER OF THE CASE
The applicants participated as victims in the criminal proceedings in which the accused was eventually convicted of persecution and aggravated defamation for having harassed them, mainly online. The claim for compensation they lodged against him in those proceedings as injured (civil) parties was granted. The applications concern the domestic courts’ refusal to make audio recordings of the applicants’ testimonies confidential.
The public was excluded from the parts of the trial which concerned sensitive health issues of the applicants. The District Court ordered that any kind of recording of the trial by the public was prohibited. However, under Finnish law, if a trial is public, district courts always audio record testimonies, which recordings are accessible to the public.
After the first applicant gave her testimony before the District Court, the audio recording of her testimony was published on YouTube, edited and subjected to offensive and derogatory comments.
Both applicants therefore requested that the public be fully excluded from the rest of the trial. They submitted that the audio recording had been published on YouTube by a person who had attended the hearing, who had insultingly reported on the trial in social media and who had publicly stated that she would publish all future audio recordings of their testimonies. They argued that, because of the publication on YouTube and the risk of future online harassment, they would not be able to testify freely if the public were not fully excluded from the rest of the trial.
The District Court held that there were no grounds to order that the remainder of the trial be held in camera but ordered that the audio recordings of the applicants’ testimonies be kept confidential.
That decision was overturned by the Court of Appeal and the Supreme Court which held that there was no legal basis in domestic law to make an audio recording of a public trial confidential. The concerns about fairness of the trial and privacy of the victims had not been so severe as to allow the trial court to make the audio recordings confidential without a legal basis.
After the Supreme Court’s decision all the applicants’ testimonies were published on YouTube, listened to more than 3,000 times and commented on in an offensive and derogatory manner.
Before the Court the applicants complain under Article 8 of the Convention that their right to respect for their private life was violated by the domestic courts’ refusal to make the audio recordings of their testimonies confidential even though it was evident that they would be published in social media for defamatory purposes.
QUESTIONS TO THE PARTIES
Was the refusal of the domestic courts to make the audio recordings of the applicants’ testimonies confidential in breach of the State’s positive obligations arising from Article 8 of the Convention? Did the domestic law provide sufficient possibilities for the applicants to seek protection against online harassment in the given circumstances?