FIFTH SECTION
DECISION
Application no. 60715/14
AS DAGBLADET
against Norway
The European Court of Human Rights (Fifth Section), sitting on 20 February 2018 as a committee composed of:
Síofra O’Leary, President,
Erik Møse,
Lәtif Hüseynov, judges,
Anne-Marie Dougin, Acting Deputy Section Registrar,
Having regard to the above application lodged on 3 September 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, AS Dagbladet, is a Norwegian newspaper company, whose head office is in Oslo. It publishes the daily newspaper Dagbladet. It is represented before the Court by Mr F. Elgesem, a lawyer practising in Oslo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant newspaper, may be summarised as follows.
3. Paramedic S. was working for the ambulance service at a hospital in Oslo on 6 August 2007 when F., a man of Somali origin, was punched and fell to the ground in a public park.
4. F. had fallen backwards, hitting his head on the asphalt. He had lost consciousness, but was breathing. He was placed in the recovery position and the police and ambulance services were summoned. Some minutes later, he awoke and attempted to stand up. He had made sounds, shouted loudly and flayed about with his arms.
5. A call came in to the accident and emergency call centre at the hospital and the incident was recorded thus: “man hit on head, lying down, bleeding, no contact possible, breathing”. This information appeared on the dispatch screen in the ambulance of S. and his colleague, when they responded to the call. They reached the park just after the police arrived.
6. S.’s colleague had helped F. to his feet and they were moving towards the ambulance when F. pulled down his trousers, held his penis with one hand and urinated on the ground in the direction of S.’s colleague, who was hit by the urine on his shoes and trousers, and who yelled “you pig” and “you fool”. F. took further steps forward while urinating, ultimately at the rear mudguard of the ambulance.
7. As a result, S. told the police that “the train has left the station for this gentleman” (“denne herremannen”) and that he constituted an “orderliness problem”. Heated and agitated feelings were aroused among those present in the park, and several of them demanded that the ambulance personnel take F. with them. In response to this, S. said something along the lines of: “he is standing upright, he will not die”. The ambulance then left the scene.
8. F. was finally taken to the accident and emergency centre by taxi, before being transferred to hospital. He was found to have suffered a serious injury. He was put on a respirator due to medical coma, and surgery was carried out during the night.
9. Several of the witnesses in the park had immediately contacted the media after the incident, and at least two witnesses had taken pictures of the episode. Online newspapers started coverage the same evening including, inter alia, an article in which F.’s partner had been quoted as saying that “if it had been a white lady who lay bleeding in the park, then this would not have happened”. The applicant’s newspaper, Dagbladet, published its first article the next day, repeating that quote. Considerable coverage of the incident followed, as well as a debate on unsound health care and claims of racism in a large number of domestic media, including the applicant’s newspaper.
10. On 11 August 2007 the applicant newspaper’s political editor posted an op-ed piece under the headline: “Horror and disgust. This week we were forced to see what we don’t want to see ...”. The piece was illustrated with a photo of F. as he lay bleeding on the ground in the park, and beside it, a photo of R., a well-known Norwegian industrialist. The editor’s main focus had been institutional racism, taking the ambulance incident as her starting point. She had written, in part:
“... because we saw it with our own eyes, we had to react .... Somali men are probably as far down the Norwegian social pecking order as you can get, and what the ambulance personnel saw when they entered the park was a Somali man .... Bottom of the pecking order ... ... Had [R.] lain bloody and broken in Hydro Park, then naturally no ambulance would have abandoned him .... Anger has turned on the ambulance personnel. This is understandable. But it is a convenient excuse to lay the blame on individuals on the front line of the welfare state ... The tragedy in Sofienberg Park shocked onlookers and the great majority of Norwegians, because we were suddenly confronted with something we did not want to see. It was racism’s ugly and merciless consequence. It was the result of a view of humanity in which some people are less worthy than others. But it did not start with [F.], and it will not end with him.”
11. On the same day the applicant newspaper published a commentary by N., an artist and journalist, in which a picture of S. was described as depicting him “laying lifeless while the ambulance personnel does not examine him”, and in its editorial on 14 August 2007 it stated that it had been “almost as if there had been a fireman who couldn’t be bothered to extinguish a fire because undesirable persons were living in the building”.
12. The incident was investigated by several bodies.
– The State Board of Health Supervision (Statens helsetilsyn) concluded, in a decision of 23 April 2008, that there had been a breach of the right to proper health assistance and that the paramedics’ language had been unacceptable, but that there were no clear indications that the failure to provide proper and caring health assistance had been due to racism.
– After S. had appealed against a decision of 26 March 2008 by the Equality and Discrimination Commissioner (Likestillings- og diskrimineringsombudet), who had found reason to believe that ethnicity had been significant in the ambulance personnel’s treatment of F., on 26 February 2009 the Equality and Discrimination Board (Likestillings- og diskrimineringsnemnda) issued a decision to the effect that the ambulance staff had not discriminated in violation of domestic anti‑discrimination legislation.
– The Norwegian Bureau for the Investigation of Police Affairs (Spesialenheten for politisaker) fined the ambulance personnel for inappropriate conduct during execution of a public service. S.’s colleague accepted the fine, while S. refused and was later acquitted by the City Court (tingrett) on 4 December 2008.
13. On 29 July 2010 S. instigated civil proceedings against the applicant newspaper before the City Court, claiming compensation for libel in accordance with section 3-6 of the Compensation Act (see paragraph 21 below) due to allegedly unlawful statements both as concerned unsound health care and racism, including statements in the articles of 11 and 14 August 2007 (see paragraphs 10 and 11 above). On 31 May 2011 the City Court ruled in favour of S. He was awarded NOK 1,000,000 (approximately EUR 103,000) in damages and recovered NOK 1,044,578 (approximately EUR 107,000) in costs.
14. The applicant newspaper appealed, and on 22 April 2013 the High Court (lagmannsrett) again ruled in favour of S., who was then awarded NOK 200,000 (approximately EUR 21,000) in damages and recovered NOK 1,000,000 (approximately EUR 107,000) in costs. Before the High Court, S.’s counsel had submitted a statement of costs amounting to NOK 1,659,928 (approximately EUR 170,000), which was not accepted by the High Court, in line with arguments submitted by the applicant newspaper to the effect that the amount was excessive. The High Court had forgotten to decide on the costs before the City Court and on 29 May 2013 gave a separate decision upholding the City Court’s decision on costs.
15. The applicant newspaper appealed against the High Court’s decision to the Supreme Court (Høyesterett), which delivered its judgment on 3 May 2014. The Supreme Court’s bench comprised five judges, three of whom concluded that all allegations of unsound patient care had remained within the bounds of what was protected by the freedom of expression, while some of the allegations of racism had not (see paragraphs 16-20 below). One judge concluded that both allegations of improper patient care and allegations of racism had exceeded the limits of what was protected; and another that all of the impugned allegations had fallen within the realm of freedom of expression.
16. By way of introduction, the Supreme Court’s majority recalled that the relevant rules on redress for defamation (see paragraphs 21-22 below) had to be interpreted in conformity with the case-law of the Court and the Supreme Court. Reference was made to several cases, including Delfi AS v Estonia, no. 64569/09, § 81, 10 October 2013 (see, now, Delfi AS v. Estonia [GC], no. 64569/09, § 138, ECHR 2015) (the balancing between Articles 8 and 10 of the Convention); Bergens Tidende and Others v. Norway, no. 26132/95, §§ 48-49, ECHR 2000‑IV; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999‑III (journalists must report on issues of general interest in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism), and Lingens v. Austria, 8 July 1986, § 46, Series A no. 103 (the distinction between statements of facts and value judgments).
17. The majority of the Supreme Court observed that the allegations of racist motives were essentially value judgments, though with elements of a more factual nature; that the applicant newspaper’s reporting of witness perceptions that the actions had been racially motivated, was as a starting point strongly protected by freedom of expression, and that this protection was further strengthened by the coverage having bolstered a public debate on an important social issue of great public interest. Reports of the witness allegations were therefore lawful. However, with the op-ed piece on 11 August 2007 (see paragraph 10 above), the applicant newspaper had transitioned from communicating other people’s allegations of racism, to reaching its own conclusion in the specific case. The racism allegations had been repeated – though not directly – in the commentary by N. on the same day and in the editorial on 14 August 2007 (see paragraph 11 above).
18. The commentaries on 11 August and the editorial on 14 August 2007 could not, in the majority’s view, be construed otherwise than that the paper had concluded that the incident in the park had been racially motivated. This impression was reinforced if one looked at the applicant newspaper’s overall coverage, where racism allegations had always been a central focal point. These had been serious allegations with a precise content, yet with no support in objective facts, other than F. being of Somali origin. The majority stated that, based on the evidence, it could be established that the ambulance men had initially intended to take F. with them, but had left him as they had been provoked by the urination, which they had mistakenly assumed to be deliberate. The newspaper could not be said to have acted in good faith when publishing grave conclusions about racism without any reservations. Even though the case circumstances had formed the basis for a debate on institutional racism, it had been the specific case circumstances that had been in focus in the newspaper’s coverage. Reference was made to Selistö v. Finland, no. 56767/00, § 52, 16 November 2004.
19. Although the case had opened the way for a public debate on an important social issue, the majority found, after an overall assessment, that the presentation of the racism claims in the applicant’s above-mentioned commentaries on 11 August and the editorial of 14 August 2007 had been so grave that they were not protected under Article 10 of the Convention. The allegations, which had been repeated several times, had not been proportional to the mistakes that had been made; S. had been identified to a broader audience, and the contentious coverage had been such that it directly impacted on his right to respect for his private life in accordance with Article 8 of the Convention. The newspaper had failed to act in diligent good faith when it had not made any form of reservation regarding the truth of the allegations being made. Its conclusions had not been necessary in order to further the debate. Reference was made to Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 47, 3 December 2013.
20. In the light of the above, the Supreme Court’s majority found that the criteria in the first and second paragraphs of section 3-6 of the Compensation Act (see paragraph 21 below) had been met. As to the appropriate amount of redress, this had to be established following a broad, discretionary assessment of the violation and the conduct of the parties. Even though S. himself had contributed to the situation arising as it did, it had to be stressed that the applicant newspaper had presented very grave allegations against him, and he had developed post-traumatic stress syndrome partly for this reason. The Supreme Court’s majority concluded that redress of NOK 200,000 (approximately EUR 21,000), as had been decided by the High Court (see paragraph 14 above), was appropriate. It did not make any specific remarks on the litigation costs when reaching that conclusion. S. also recovered NOK 1,029,538 (approximately EUR 106,000) in costs before the Supreme Court, as stipulated in his bill.
B. Relevant domestic law and practice
21. The relevant parts of section 3-6 of the Compensation Act (skadeserstatningsloven) read:
“§ 3–6 (compensation for defamation and infringement of privacy).
Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing punishment are fulfilled, pay compensation for the injury sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non‑financial injury as the court finds reasonable.
If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher too are liable for the compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in regard to them. The Norwegian Broadcasting Corporation is similarly liable when anybody acting in its service is responsible under the preceding paragraph for a broadcast. The same rule applies to other broadcasting institutions.
...”
22. Conditions for holding a defendant liable for defamation were further set out in Chapter 23 of the Penal Code (straffeloven), Articles 246 and 247 of which provided:
“Article 246. Any person who, by word or deed, unlawfully defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months.
Article 247. Any person who, by word or deed, behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting, or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
A limitation to the applicability of Article 247 followed from the requirement that the expression must be unlawful (rettsstridig). While this was expressly stated in Article 246, Article 247 had been consistently interpreted by the Supreme Court to include such a requirement.
COMPLAINT
23. The applicant newspaper complained that the imposed liability for redress and the order to compensate S.’s legal costs violated its right to freedom of expression as enshrined in Article 10 of the Convention.
THE LAW
24. The applicant company argued that the imposition of liability for redress and S.’s legal costs entailed an infringement of its right to freedom of expression under Article 10 of the Convention, which reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
25. The applicant newspaper submitted that the allegations that were held to be defamatory were value judgments that contributed to an ongoing debate on an issue of considerable public interest. The Supreme Court’s majority had applied too narrow an understanding of “racism”, essentially excluding institutional or structural racism, including that which is the result of unconscious bias. The allegations had not been excessive and had had a sufficient factual basis. The paramedics had been civil servants and treated F. in an irresponsible and condescending manner; the information had been based on the testimony of a great number of witnesses and disseminated through broad media coverage; the applicant’s overall coverage had been balanced; and the statements found defamatory by the Supreme Court’s majority could not have been discernible for S. in the light of the totality of the public attention attracted by the incident. Civil liability in conjunction with S.’s recovery of legal costs meant that the newspaper had been subjected to a very severe sanction.
26. The Court notes at the outset that the imposition of liability on the applicant newspaper constituted a restriction of the newspaper’s exercise of its right to freedom of expression under Article 10 of the Convention. Furthermore, the Court observes that the restriction had a legal basis in section 3-6 of the Compensation Act and Article 247 of the Penal Code (see paragraphs 21-22 above) and aimed to protect the “reputation or rights of others” in accordance with the second paragraph of Article 10.
27. The general principles for assessing the necessity of an interference with the exercise of freedom of expression in a democratic society have frequently been reaffirmed by the Court (see, among many authorities, Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016; and Baka v. Hungary [GC], no. 20261/12, § 158, ECHR 2016). The Court reiterates in particular that in a case such as the present, it must ascertain whether the domestic authorities struck a fair balance between the competing interests at stake, which in the present case were the protection of freedom of expression as enshrined in Article 10 of the Convention and the protection of the reputation and honour of S., a right which is protected by Article 8 as part of the right to respect for private life (see, among many authorities, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 83-84, 7 February 2012). In its case-law, the Court has identified a number of relevant criteria where the right to freedom of expression is being balanced against the right to respect for private life (see Axel Springer AG, cited above, §§ 89-95, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 108-113, ECHR 2012). Where the balancing exercise has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88).
28. Turning to the instant case, the Court notes that the articles in question concerned alleged irregularities in public health care, including allegations of racism in that context. Only some of the applicant newspaper’s articles concerning racism – those that in the view of the Supreme Court’s majority contained the newspaper’s own conclusions of racial motivation (see paragraphs 18 above and 29 below) were found unlawful and formed the grounds for awarding S. redress. The majority rightly observed that testimony of racism in connection with public health care is of great public interest (see paragraph 17 above). As such testimony was the starting point of the newspaper’s coverage, that coverage attracted a high level of protection under Article 10 of the Convention, with the authorities having a particularly narrow margin of appreciation (see, among many authorities, Morice v. France [GC], no. 29369/10, § 125, ECHR 2015).
29. The Supreme Court’s majority found that the allegations of racism had essentially been value judgments (see paragraph 17 above). However, according to the Court’s case-law, as also observed by the Supreme Court, “even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive” (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 55, ECHR 2007‑IV).
30. The Supreme Court’s majority considered that the commentaries on 11 August and the editorial on 14 August 2007 could not be construed otherwise than that the applicant newspaper had “concluded” that the incident in the park had been “racially motivated” (see paragraph 18 above). According to the majority, these allegations had had no basis in any facts other than F. being of Somali origin, and the majority found that when publishing them, without any reservations, the applicant newspaper had not acted in good faith (ibid.). It also considered that the allegations had not been necessary to further the general debate (see paragraph 19 above); the allegations had been “grave” and “not ... proportional”, and the applicant’s articles viewed together had been suitable to identify S. to a wider circle (ibid.). It concluded that the contentious coverage had been such that it had directly impacted on S.’s right to respect for his private life under Article 8 of the Convention (ibid.).
31. Finding that the Supreme Court’s majority relied on an acceptable assessment of the relevant facts, the Court does not see any reason to depart from that court’s finding that the statements on 11 and 14 August 2007 implied an attack on S.’s reputation that attained a level of seriousness and in a manner that caused prejudice to his personal enjoyment of his right to respect for private life so that Article 8 was brought into play (see Axel Springer, cited above, § 83), and that they were excessive.
32. Turning to the nature and severity of the sanction, the Court notes that the applicant was ordered to pay NOK 200,000 (approximately EUR 21,000) in civil redress to S. The Court does not find that this award to S. made the interference disproportionate.
33. The Supreme Court’s judgment also implied that S. was to recover legal expenses of NOK 3,074,116 (approximately EUR 315,000) for all three levels of domestic courts (see paragraphs 13-14 and 20 above). The Court has no comment to make regarding the fact that liability for costs was placed on the applicant newspaper, which had denied any liability for its statements, although the domestic courts did not concede to all of S.’s complaints. Turning to the amount, the Court notes as a starting point that it does not emerge from the Supreme Court’s judgment, or other documents submitted to the Court, that the applicant newspaper contested S.’s costs at the Supreme Court level – either the decisions on costs made by the lower court instances or S.’s bill of costs before the Supreme Court. The High Court had conceded to the newspaper’s protests against S.’s costs before that court (see paragraph 14 above). The applicant has not specifically submitted to the Court that S.’s expenses were excessive and unreasonable as such, and regard must be had to the general level of expenses in the jurisdiction (see, mutatis mutandis, Independent Newspapers (Ireland) Limited v. Ireland, no. 28199/15, § 84, 15 June 2017, with further references). Bearing in mind, additionally, that the applicant company, which was not amongst those excluded from access to justice for financial reasons, had brought the case before two appellate levels, contesting liability, and observing that there were no success fees or similar constructions in play (see, in contrast, MGN Limited v. the United Kingdom, no. 39401/04, §§ 192-220, 18 January 2011), the Court does not in the circumstances find that the decision on costs made the interference disproportionate.
34. In the light of the foregoing, the Court considers that the Supreme Court advanced relevant and sufficient reasons for its decision to impose liability on the applicant newspaper and that the interference that this entailed was proportionate to the legitimate aim pursued. Furthermore, the Court finds that the Supreme Court carried out the exercise of balancing the interests protected by Articles 10 and 8 of the Convention in conformity with the criteria laid down in the Court’s case-law and that, while opinions on the outcome may differ, there are not “strong reasons” for the Court to substitute the Supreme Court’s assessment with one of its own.
35. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 22 March 2018.
Anne-Marie DouginSíofra O’Leary
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy