CASE OF SALUMÄKI v. FINLAND

FOURTH SECTION

CASE OF SALUMÄKI v. FINLAND

(Application no. 23605/09)

JUDGMENT

STRASBOURG

29 April 2014

FINAL

29/07/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Salumäki v. Finland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 1 April 2014,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 23605/09) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Ms Tiina Johanna Salumäki (“the applicant”), on 30 April 2009.

2. The applicant was represented by Mr Markku Varhela, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

3. The applicant alleged, in particular, that her right to freedom of expression had been violated.

4. On 18 January 2010 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1978 and lives in Helsinki.

6. The applicant is a journalist with a nationwide evening newspaper, Ilta‑Sanomat. On 8 July 2004 Ilta-Sanomat published an article, written by the applicant, concerning the investigation into a homicide which had been committed a few days earlier. The article referred to K.U., a well-known Finnish businessman. The front page of the edition carried a headline: “Cruel killing in Vantaa: The executed man had connections with K.U.?” A photograph of K.U. also appeared on the front page. The article itself was entitled: “The victim of the Vantaa homicide had connections with K.U.?” Under a smaller heading, “The suspect in the cruel execution killing is a former member of the [motorcycle gang]”, the article read:

“[P.O.], who was brutally killed in Vantaa, may have had connections with the businessman [K.U.]. In 2002 [P.O.] was captured trying to smuggle bags containing money from Estonia into Finland. The police suspect that those bags [with contents] belonged to [K.U.].

The incident is currently pending before the prosecutor for the consideration of charges. [P.O.] is suspected of an aggravated receiving offence and [K.U.] of aggravated debtor’s fraud in that connection.

Other suspects besides [P.O.] and [K.U.] have also been exposed regarding that case. In practice, [P.O.] is being considered as a suspected receiver.

The leader of the investigation, criminal inspector [M.I.] of the National Bureau of Investigation [(keskusrikospoliisi, centralkriminalpolisen)], says that the [K.U.] –connection is a part of the investigation into the Vantaa homicide.”

7. Under the following subheading “The suspect admitted to being at the scene” the article went on:

“The police have detained a 39-year old man as a suspect in [P.O.’s] murder. ‒ In the light of the current evidence, the detained person has no connection with [K.U.], says [the inspector].”

8. The article continued with information concerning the detained person and the ongoing investigation into the homicide. It quoted the investigator’s statement that it was possible that the suspect had been acting under commission which, according to the applicant, implied the possibility of a contract killing.

9. The article was illustrated by a photograph, apparently taken in the vicinity of the crime scene.

10. Next to the article there was a separate information column concerning K.U.’s previous conviction for economic crimes and his academic achievements. Under a heading: “Who?” the column reproduced a photograph of K.U., taken at the public defence of his doctoral thesis.

11. On the same date the same information was published in the other evening newspaper Iltalehti in the form of an interview given by K.U.

12. On 11 April 2006 the public prosecutor preferred charges against the applicant and H.S., the newspaper’s editor-in-chief at the time. In his indictment the prosecutor maintained that by writing and allowing publication of the above article, the applicant and H.S. had given false information about K.U. in a manner that had been conducive to causing him suffering and damage and to subjecting him to contempt, and that they had also disparaged him in other ways. The prosecutor did not allege that the information imparted in the article had been false as such, but contended, inter alia, that the combination of large headings with question marks, the text of the article, the photographs of K.U. and his personal profile had aimed to insinuate to the readership that K.U. might have had a motive to commission the killing.

13. K.U., for his part, requested that the applicant and H.S. be punished and claimed compensation for suffering and legal costs in the same proceedings. He contended that the defendants had unlawfully connected him with murder in Finland’s largest evening newspaper. The use of his photograph, taken at the public defence of his doctoral thesis, had added to his suffering as he was thus defamed as an academic, which was to be his future career. According to K.U., the worst part of the criminal act had been the combination of the heading and his photograph, and the image thus created in the minds of those people who had not read the article itself. The defendants had sought to profit by their act. In addition to the permanent stigma, K.U. maintained that the offence had brought shame and distress to his family.

14. The applicant and H.S. contested the charge and the civil claims. Their main arguments were the following. The article did not contain any false information, nor could it have disparaged K.U. or caused him suffering. The latter point was highlighted by the fact that K.U. had himself given an interview concerning the same matter to another evening newspaper published on the same date. The article concerned a criminal investigation of general interest and was based on information given by the authorities. K.U. was a public figure and his connection with P.O. had been an issue of general interest and significance in itself. By pressing charges the prosecutor had unnecessarily interfered with the defendants’ freedom of expression, protected by the Constitution and Article 10 of the Convention.

15. When heard in person at the District Court’s oral hearing H.S. submitted, inter alia, that K.U. had contacted him after the article had been published. He had been very hurt and upset. H.S. had then offered him the possibility of rectification. According to the documents, K.U. had turned down that offer.

16. On 25 August 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) issued its judgment. It convicted the applicant and H.S. of defamation pursuant to Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. The applicant was sentenced to 30 day-fines amounting to a total of 720 euros (EUR). She was also ordered to pay K.U., jointly and severally with H.S., EUR 2,000 for suffering and EUR 1,500 in legal costs.

17. In its reasons the court noted that it had to examine the conflicting interests of freedom of expression and the right to privacy, referring to sections 10 and 12 of the Constitution and Article 10 of the Convention. It also made reference to the Supreme Court precedent no. KKO:2006:20, where that court found that the freedom of expression did not justify violation of a person’s honour or private life. In assessing the article written by the applicant the court found as follows:

“It is undisputed that in the summer of 2004 [K.U.] was a public figure. It is also undisputed that the article did not contain factual errors. Thus, each piece of information contained therein was accurate.

The District Court has to assess whether the article included such insinuations that have been conducive to causing suffering or contempt or if it was disparaging in other aspects.

The article ... covered the pre-trial investigation of a homicide which had taken place a few days earlier, as well as another large-scale case concerning economic crime, already pending before the prosecutor. The same person had been the victim of the homicide and one of the suspects in the economic offences. [K.U.] had known the victim of the homicide and was also one of the suspects in the case concerning economic offences.

The defendants have pleaded, inter alia, that the newspaper had been obliged to report on crime. The article ... had emphasised the connection between [K.U.] and the victim of the homicide. In the District Court’s view no such circumstances have emerged in these proceedings which would have linked the fact that [K.U.] had known the victim of the homicide to his public activities. Nor has it been established that the fact that [K.U.] knew the victim ... had been of general interest or that this piece of news had had such significance to society that it had been important to publish it.”

18. The District Court concluded:

“The most central topics of the article ... had been the connection with the victim of the homicide and [K.U.], suspicions of economic offences, organised crime, and a possible contract killing. The use of the heading ‘The victim of the Vantaa homicide had connections with [K.U.]?’ along with the background information on [K.U.] under a title ‘Who?’, illustrated with his photograph, had personified the whole article to [K.U.] Although the heading of the article carried a question mark and the first paragraph in the text mentioned that the victim might [italics added here] have had connections with [K.U.], the text does not provide an immediate answer to that question, nor does it state clearly that the victim and [K.U.] had known each other only from other circumstances. The article had left the answers open. As the text dealt with the connection between the victim of the homicide and [K.U.] and, at the end, a possible contract killing, [K.U.] had also been connected with a contract killing.

Connecting a person groundlessly with a contract killing violates his honour.

By combining information received and statements given by the head of the investigation and by mixing two different criminal investigations the article has given an ambiguous picture of the connection between those cases. The headings and the information concentrating on [K.U.]’s personal profile had made [K.U.] the main common feature of the crimes.

The District Court finds that in the article [K.U.] had been linked with a homicide in a manner that insinuated a connection between [K.U.] and the commission of the homicide and a contract killing. Such an insinuation violates [K.U.’s] honour and has caused him suffering.”

19. The District Court was composed of one professional judge and three lay judges. One of the lay judges was in favour of an acquittal. In his dissenting opinion he stressed the fact that all the information presented in the article had been accurate. In his view the mere fact that a party to the case, his family or friends were shocked about the news coverage, or that the readers of a newspaper were not fully able to comprehend the text, could not constitute defamation.

20. The applicant and H.S. appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten), relying mainly on their previous arguments. They also contested the lower court’s interpretation of the law.

21. On 14 November 2007 the Court of Appeal upheld the District Court’s judgment. In its reasoning the appellate court reiterated that giving false information or making false insinuations about another person in a manner conducive to causing damage or suffering to that person, or subjecting that person to contempt, constituted defamation as set out in Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. It referred to the relevant Government Bill for the amendment of that provision (HE 184/1999 vp) in stating that it was characteristic of that offence to concern false factual information or a false insinuation bearing a close resemblance to factual information. In principle, the veracity of an argument may be reviewed afterwards. If an argument is accurate, or if the insinuation concerns a fact, the act may nevertheless be punishable as defamation under point 2 of the provision, if the information is given or insinuation made with a view to disparaging another person deliberately.

22. The court then found that:

“It is undisputed that the information in the article published in Ilta-Sanomat on 8 July 2004 concerning two different criminal matters was accurate as such. The common feature of those matters has been the fact that [K.U.] and the victim of the homicide had been suspects in one of the criminal cases mentioned in the article. The headings of the article, the text, and the photographs of [K.U.] on the cover and on the article have, however, created a connection falsely implying that [K.U.] was somehow involved in the homicide. The heading of the article and its tone were such that the fact that [K.U.] was not, strictly speaking, an accomplice to the homicide only became clear on reading through the article more closely. It followed that Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code was to be applied in this case, as indicated by the District Court.”

23. The Court of Appeal went on to assess in detail whether the defendants’ conduct could be regarded as intentional. The court found that the applicant was a professional journalist and that she must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering. Reaching thus an affirmative conclusion, the court found no reason to deviate from the outcome of the lower court’s judgment.

24. On 7 November 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.

II. RELEVANT DOMESTIC LAW

25. The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:

“Section 10 – The right to privacy

Everyone’s private life, honour and the sanctity of the home are guaranteed. ...

...

Section 12 – Freedom of expression and right of access to information

Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”

26. Chapter 24, Article 9, paragraphs 1 and 2, of the Penal Code (rikoslaki, strafflagen; Act no. 531/2000) provide:

“A person who

1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or

2) disparages another person in a manner other than referred to in point 1

shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months.

Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.”

27. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974, as amended by Act no. 509/2004), provides that a person may be awarded compensation for suffering if, inter alia, his or her liberty, peace, honour, or private life has been violated through a punishable act. In assessing the level of that suffering the nature of the violation, the status of the victim, the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account.

28. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering arising from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy, up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

29. The applicant complained about a violation of her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows:

“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.”

30. The Government contested that argument.

A. Admissibility

31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

32. The applicant stressed that the Guidelines for Journalists could not be used as a basis for criminal liability or liability for damages as they had only been drafted for the purpose of self-regulation within the profession.

33. The applicant maintained that the Government and K.U. had never alleged at any stage of the proceedings that the information presented by the applicant in the article in question might have been incorrect. The clear wording of the Penal Code showed that the judgment of the Court of Appeal had been incorrect in this respect. The applicant had not written that K.U. had had a connection to the killer; instead, she had written that a connection had existed to the victim of the homicide, which had been true. The conclusion could not therefore be that K.U. had a connection to the homicide, as the Court of Appeal had incorrectly stated.

34. The applicant pointed out that the Court of Appeal had not referred to the Court’s case-law nor balanced the applicant’s right to freedom of expression against K.U.’s right to reputation. No reasons had been given as to why there had been a compelling social need to limit the applicant’s freedom of expression, nor had any reasons been given as to why such limitation had been considered proportionate vis-à-vis the legitimate aim relied on. The applicant claimed that the Government seemed to expect that there needed to be a ground for publishing information, while the Court’s case-law showed the opposite, namely that there needed to be a special ground for not publishing certain information. The present article could not insult K.U.’s honour, solely on the ground that the same information had been published in another evening newspaper in K.U.’s own words on the same date.

(b) The Government

35. The Government agreed that the applicant’s conviction and the obligation to pay damages and costs had amounted to an interference with her right to freedom of expression.

36. As to the requirement that measures be “prescribed by law”, the Government pointed out that the impugned measures had had a basis in Finnish law, namely in Chapter 24, section 9, of the Penal Code. Moreover, the Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) also regulated the correctness of information. The possibility of publishing a crime suspect’s name had gradually been clarified through the practice of the Supreme Court but the applicant had not sought legal advice on publishing K.U.’s name and photograph. Consequently, in the Government’s view, the relevant domestic law had been precise enough for the applicant to be able to foresee, to a degree that was reasonable in the circumstances of the present case, the consequences which her action would entail. Moreover, the legitimate aim had been to protect K.U.’s reputation.

37. The Government maintained that the interference had also been “necessary in a democratic society”. The title and the text of the article in question had indirectly connected K.U. with a homicide and his name and photograph had been published nationwide in that context. Thus a large number of persons had become aware of the article. Even though K.U. had offered an interview about the same matter to another evening newspaper published on the same date, he had not consented to the publication of his name and photograph in the article in question. Both the District Court and the Court of Appeal had found that the article had given an erroneous impression that K.U. was linked to the homicide in question. Even taking into account that he was a public figure, there had been no justification for giving the impression that K.U. had been connected to the homicide.

38. As to the fines and the amount of compensation imposed, the Government argued that they had been significantly lower than in some other previous Finnish Article 10 cases. Bearing in mind the margin of appreciation, the Government argued that the interference in the present case had been “necessary in a democratic society”.

2. The Court’s assessment

1. Whether there was an interference

39. The Court agrees that the applicant’s conviction and the award of damages and costs constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

2. Whether it was prescribed by law and pursued a legitimate aim

40. The Court notes that, according to the Government, the impugned measures had a basis in Finnish law, namely in Chapter 24, section 9, of the Penal Code. Moreover, the interference complained of had a legitimate aim, namely the protection of the reputation or rights of others. The applicant did not dispute this.

41. The Court notes that freedom of expression is subject to the exceptions set out in Article 10 § 2 of the Convention. The Court accepts that the interference was based on Chapter 24, section 9, of the Penal Code, as in force at the relevant time. It was thus “prescribed by law” (see Nikula v. Finland, no. 31611/96, § 34, ECHR 2002-II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004; Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004-X; and Eerikäinen and Others v. Finland, no. 3514/02, § 58, 10 February 2009) and it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.

3. Whether the interference was necessary in a democratic society

42. According to the Court’s well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual’s self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2 which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103; and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

43. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).

44. The Court’s task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

45. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicant and the context in which she made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30; Lingens v. Austria, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski v. Poland, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000-I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).

46. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997‑I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas, the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65).

47. The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Bladet Tromsø and Stensaas v. Norway, cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; and Bladet Tromsø and Stensaas, loc. cit.).

48. The limits of permissible criticism are wider as regards a politician than as regards a private individual. Unlike the latter, the former inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance (see, for example, Lingens v. Austria, cited above, § 42; Incal v. Turkey, 9 June 1998, § 54, Reports of Judgments and Decisions 1998‑IV; and Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Similar considerations apply also to persons in the public eye (see Fayed v. the United Kingdom, 21 September 1994, § 75, Series A no. 294‑B; Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005‑II; and contrast with Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004‑VI; and MGN Limited v. the United Kingdom, no. 39401/04, § 143, 18 January 2011). In certain circumstances, even where a person is known to the general public, he or she may rely on a “legitimate expectation” of protection of and respect for his or her private life (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 97, ECHR 2012).

49. Moreover, the Court has recently set out the relevant principles to be applied when examining the necessity of an instance of interference with the right to freedom of expression in the interests of the “protection of the reputation or rights of others”. It noted that in such cases the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to respect for private life enshrined in Article 8 (see Axel Springer AG v. Germany [GC], no. 39954/08, § 84, 7 February 2012; and MGN Limited v. the United Kingdom, cited above, § 142).

50. In Von Hannover v. Germany (no. 2) [GC] (cited above, §§ 104-107) and Axel Springer AG v. Germany [GC] (cited above, §§ 85-88), the Court defined the Contracting States’ margin of appreciation and its own role in balancing these two conflicting interests. The Court went on to identify a number of criteria as being relevant where the right of freedom of expression is being balanced against the right to respect for private life (see Von Hannover v. Germany (no. 2) [GC], cited above, §§ 109-113; and Axel Springer AG v. Germany [GC], cited above, §§ 89-95), namely:

(i) contribution to a debate of general interest;

(ii) how well-known is the person concerned and what is the subject of the report;

(iii) prior conduct of the person concerned;

(iv) method of obtaining the information and its veracity/circumstances in which the photographs were taken;

(v) content, form and consequences of the publication; and

(vi) severity of the sanction imposed.

51. Turning to the facts of the present case, the Court notes that the applicant was charged, prosecuted and convicted of defamation in her capacity as a journalist and that she was ordered to pay damages and costs to K.U.

52. The Court observes at the outset that the article of 8 July 2004 stated that P.O., who was brutally killed in Vantaa, may have had connections with the businessman K.U. In 2002 P.O. was captured trying to smuggle bags containing money from Estonia into Finland and the police suspected that those bags and their contents belonged to K.U. In that matter, which was pending before the prosecutor for the consideration of charges, P.O. was suspected of an aggravated receiving offence and K.U. of aggravated debtor’s fraud. A part of the homicide investigation was to investigate K.U.’s connection with the victim of the homicide. K.U.’s full name and photograph were included in the article.

53. In order to assess whether the “necessity” of the restriction of the exercise of the freedom of expression has been established convincingly, the Court must examine whether the balancing exercise between the freedom of expression and the right to respect for private life has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law.

54. The Court considers that the general subject matter which was at the heart of the article in question, namely the criminal investigation into a homicide, was clearly a matter of legitimate public interest, having regard in particular to the serious nature of the crime. From the point of view of the general public’s right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds for reporting the matter to the public.

55. The Court notes that, according to the domestic courts, it was equally clear that K.U., at the time the article was published, had already been in the limelight. There is no suggestion that details of the article or the photograph of K.U. were obtained by subterfuge or other illicit means (compare Von Hannover v. Germany, cited above, § 68). On the contrary, the article was based on information given by the authorities and K.U.’s photograph had been taken at a public event.

56. Moreover, the Court observes that the facts set out in the article in issue were not in dispute even before the domestic courts. There is no evidence, or indeed any allegation, of factual errors, misrepresentation or bad faith on the part of the applicant (see, in this connection, Flinkkilä and Others v. Finland, no. 25576/04, § 81, 6 April 2010).

57. However, the Court notes that the impugned article was entitled: “The victim of the Vantaa homicide had connections with K.U.?” Although it was phrased as a question, according to the domestic courts, the title created a connection between K.U. and the homicide, implying that he was involved in it. In the text of the article this allegation was alleviated by stating that the victim of the homicide might have had such connections. The domestic courts noted that, for the reader, however, this information only appeared in the text of the article. Moreover, it was also of importance for the domestic courts that in the title K.U. was alleged to have connections with the victim of the crime. Even though it was specifically stated in the text of the article that the homicide suspect had no connections with K.U., this information only appeared towards the end of the article.

58. The Court notes that the Court of Appeal found in its judgment that the applicant must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering to K.U. The Court would in this context refer to the principle of presumption of innocence under Article 6 § 2 of the Convention and to emphasise that this principle may be relevant also in Article 10 contexts in situations in which nothing is clearly stated but only insinuated (compare and contrast Ruokanen and Others v. Finland, no. 45130/06, § 48, 6 April 2010).

59. In sum, the juxtaposition of two unrelated criminal investigations, with headlines which clearly suggested to the ordinary reader that there was more to P.O.’s murder than what was actually being stated in the text of the articles, was defamatory, implying that K.U. was somehow responsible for P.O.’s murder. It amounted to stating, by innuendo, a fact which was highly damaging to the reputation of K.U. At no time did the applicant attempt to prove the truth of the insinuated fact, nor did she plead that the insinuation was a fair comment based on relevant facts.

60. The Court further notes that in its judgment the District Court examined the conflicting interests of freedom of expression and the right to privacy, referring to the Constitution as well as to Article 10 of the Convention. The court also made reference to a Supreme Court precedent in which that court, referring to the relevant case-law of the Court, had found that freedom of expression did not justify violation of a person’s honour or private life. By upholding the District Court’s judgment, the Court of Appeal also accepted this reasoning. The Court therefore considers that the domestic courts in their analysis attached sufficient importance to the applicant’s right to freedom of expression and balanced it in an adequate way against K.U.’s right to reputation.

61. Finally, the Court has taken into account the severity of the sanctions imposed on the applicant. The applicant was convicted under criminal law and was ordered to pay 30 day-fines amounting to EUR 720. She was also ordered to pay K.U., jointly and severally with her co-defendant, EUR 2,000 for suffering and EUR 1,500 in legal costs. No other sanctions or financial consequences were imposed. Moreover, the Court notes that, according to the domestic law, no entry of the conviction was made on the applicant’s criminal record as the sanction imposed only concerned a fine. The Court finds the sanction imposed reasonable (compare and contrast Flinkkilä and Others v. Finland, cited above, §§ 89-91; and Lahtonen v. Finland, no. 29576/09, § 78, 17 January 2012).

62. Therefore, in conclusion, in the Court’s opinion the reasons relied on by the domestic courts were relevant and sufficient to show that the interference complained of was “necessary in a democratic society”. Having regard to all the foregoing factors, including the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests at stake.

63. There has therefore been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible;

2. Holds that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 29 April 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıIneta Ziemele
Deputy RegistrarPresident

Full & Egal Universal Law Academy