FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3514/02
by Pentti EERIKÄINEN and Others
against Finland
The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrS. Pavlovschi,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 25 January 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The first applicant, Mr Pentti Eerikäinen, is a Finnish national who was born in 1946 and lives in Otava. The second applicant, Mr Matti Paloaro, is a Finnish national, who was born in 1942 and lives in Kylmäkoski. He is the former editor-in-chief of the third applicant, a publishing company named Yhtyneet Kuvalehdet Oy. The applicants were represented before the Court by Mr Heikki Salo, a lawyer practising in Helsinki. The respondent Government were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The first applicant is a freelance journalist. In 1997 he wrote an article about criminal proceedings which were then pending before the District Court (käräjäoikeus, tingsrätt) of Turunseutu. A defendant, X, was charged with various counts of tax fraud and aggravated fraud through allegedly deceiving the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) and insurance companies. The article was published in no. 6/97 of the magazine “Alibi”, and entitled: “It seemed legal, but... a woman entrepreneur cheated to obtain a pension of over 2 million marks?” (Näytti lailliselta, mutta... yrittäjärouva huijasi yli 2 miljoonan eläkkeen?). The article did not mention X’s name. In the magazine’s table of contents, however, her first name was mentioned. As part of the article, the magazine included a reproduction of an old article with a photograph of X. That article, written by the first applicant, had been published in another magazine several years before.
In September 1997 X lodged a criminal complaint, and proceedings were instituted against the applicants. On 18 December 1997, however, the Espoo District Court dismissed the charges. X appealed to the Helsinki Court of Appeal (hovioikeus, hovrätt), which upheld the judgment on 1 April 1999. X was ordered to reimburse the applicants’ legal costs.
Following the District Court’s judgment in the criminal proceedings X brought civil proceedings against the applicants before the Espoo District Court. She claimed that the said article had incriminated and insulted her and, in the alternative, that her picture had been published against her will, causing her mental suffering. She requested compensation for non-pecuniary damage in the amount of 250,000 Finnish marks (FIM; 42,047 euros (EUR)). In the second scenario, she claimed compensation for the publication of her picture and non-pecuniary damage in the amount of FIM 125,000 (EUR 21,023). She also claimed pecuniary damage in the amount of FIM 29,234 (EUR 4,917). In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy.
On 31 March 1998 the District Court issued its judgment. It found that, given that X had been only a suspect at the time and the criminal case against her had still been pending, it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud. The case thus amounted to defamation, as set out in Chapter 27 of the Penal Code (rikoslaki, strafflagen). The court further found that other parts of the article were not defamatory. Relying on the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen), the District Court ordered the applicants jointly and severally to pay X FIM 80,000 (EUR 13,455) for non-pecuniary damage and FIM 27,554 (EUR 4,634) for pecuniary damage, and to pay her legal costs. Finally, the District Court found that, having regard to the above, there was no need to adjudicate on her second claim.
The applicants appealed to the Helsinki Court of Appeal, claiming that the District Court should not have based their liability to pay damages on the fulfilment of the constitutive elements of defamation, as X had claimed damages only with reference to the invasion of her privacy. They further denied that the case gave rise to any offence, and relied on their freedom of expression. X also appealed, requesting that the amount of damages be increased.
On 8 December 1999, without holding an oral hearing, the appellate court quashed the judgment, reasoning, inter alia, that:
“... Even though the District Court should have obtained submissions from the parties as to whether the act fulfilled the constitutive elements of an offence on which the District Court would base its decision, this did not affect the result of the case, taking into account that the [applicants’] submissions had been duly considered. ...
... It was clear from the text of the article that it concerned a pending public trial. X’s identity was not revealed in the headline, thus she could not be assumed to be guilty of an offence only by reading the headline. Neither was her identity disclosed in the table of contents; to identify her required reading through the article. The text of the article is not defamatory or slanderous on the grounds set out in the District Court’s judgment. Publishing an article about charges brought before a public trial is justified, even though it might cause suffering for the accused. The act did not amount to defamation...
... the crimes allegedly committed cannot be regarded as minor, taking into account their extent, effects and the general interest. An article about this kind of case, and the publication of a photo from which [X] could have been identified, is not a violation of her privacy.”
X applied for leave to appeal from the Supreme Court (korkein oikeus, högsta domstolen).
Meanwhile, on 8 May 2000 the Turunseutu District Court convicted X of, inter alia, five offences of tax fraud and two offences of aggravated fraud and sentenced her to one year and ten months’ imprisonment. She was ordered to pay damages of approximately FIM 2.5 million (EUR 420,270).
On 21 November 2000 the Supreme Court granted her leave to appeal. On 26 September 2001 it issued its judgment, which became a precedent (KKO 2001:96). The Supreme Court ruled that, in line with the grounds presented by the Court of Appeal, the applicants had not committed defamation. It found, however, that by reproducing a picture from an old article, including a photograph of X, they had violated her right to privacy, and ordered the applicants to pay FIM 20,000 (EUR 3,364) for non-pecuniary damage and to reimburse her legal costs. The court reasoned, inter alia, that:
“... the charges related to [X’s] acts as an entrepreneur in a relatively small cleaning firm. Although the criminal charges concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that it would have been reasonable to reproduce, as part of an article and without [X’s] consent, another article that included [X’s] name and photograph. Although the purpose of the article might have been to draw attention to the abuse of social benefits in general, and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation, an illustration revealing the identity of an accused or convicted private person in a similar position to [X]...”
On 2 November 2001 the applicants requested the Supreme Court to annul its judgment on procedural grounds, claiming that the Supreme Court had based its judgment on points which had not been raised by the claimant.
On 28 June 2002 the Turku Court of Appeal upheld X’s conviction for, inter alia, tax fraud, aggravated fraud and fraud, without amending the sentence.
On 3 March 2003 the Supreme Court dismissed the applicants’ request to annul its judgment.
B. Relevant domestic law
Domestic law
Section 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, as amended by Act no. 969/1995 and in force at the relevant time), provided:
“Everyone shall have the right to freedom of expression. The right to freedom of expression shall entail the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by Act of Parliament.
Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
The same provision appears in the current Constitution of 2000 (731/1999, section 12).
Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfriherslag; 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.
Chapter 5, section 6 of the Tort Liability Act (412/1974) stipulates that damages may also be awarded for distress arising from an offence against liberty, honour or domestic harmony or from another comparable offence.
Under chapter 5, section 1 of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.
Chapter 27, section 3a of the Penal Code, as in force at the relevant time, provided that a person who unlawfully, through the use of the mass media or in another similar manner, publicly spread information, an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering, should be convicted of invasion of privacy and sentenced to a maximum term of two years’ imprisonment or to a fine. A publication that dealt with a person’s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, was not to be considered as an invasion of privacy if the reporting was necessary to address a matter of social importance.
According to Government Bill HE 84/1974, information is considered to be part of private life unless it is specifically found not to belong to it. In order for a particular form of conduct to be punishable, it had to be conducive to causing damage or suffering. Such damage also referred to “non-pecuniary damage that may have appeared as harming social relations or prestige”.
In 2000 Chapter 27, section 3a was replaced by Chapter 24, section 8 (531/2000) of the Penal Code. Under the new provision on the invasion of personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of an invasion of personal reputation. However, an act shall not constitute an invasion of personal reputation if it concerns the evaluation of that person’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society.
According to the Parliamentary Law Committee’s 2000 Report (lakivaliokunta, lagutskottet, LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.
Chapter 17, section 6 (571/1948) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that if the issue relates to the quantum of damages and no evidence is available or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum, within reason.
Section 2 of the Act on the Public Nature of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties as well as the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest.
Section 3 of the said Act provides that the public shall have the right to be present during hearings unless otherwise provided in the relevant legislation.
Section 9 of the said Act provides that the provisions laid down in the Act on the Openness of Government Activities (laki yleisten asiakirjojen julkisuudesta, lag om allmänna handlingars offentlighet) shall apply to the public nature of trial documents. Under section 4 of the last-mentioned Act, information and documents relating to a trial are, as a rule, public once charges have been brought.
The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalisförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalisreglerna). The 1992 Guidelines were in force at the material time: paragraph 26 provided that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position which justified publication.
New Guidelines came into force in 2005. According to paragraphs 31-32 of these Guidelines, the name, photograph or other identifying facts of a convicted criminal may be published unless it is viewed as unjust in terms of his/her position or action. A journalist must be careful not to present information that may lead to the identification of a person in cases where he/she is only a suspect or has merely been charged.
Domestic practice
The Supreme Court’s precedent of 25 June 2002 (KKO 2002:55) concerned the broadcasting of the name of a woman who, together with a person in a public position, was party to an assault. The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for assault did not constitute a criminal-law sanction such as to have justified publishing her name.
Another precedent of 4 July 2005 (KKO 2005:82) concerned an article about a relationship between A, who worked as a press officer for a candidate in the presidential elections, and B, the ex-spouse of a TV journalist. A’s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court’s case-law, found that A did not hold a position that meant that such details of her private life would have been publicly important. The article had thus invaded A’s privacy.
In a precedent of 19 December 2005 (KKO 2005:136), the Supreme Court found that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy. The court noted that the person had been convicted by a district court of offences of violence which had also degraded the victim’s human dignity. Further, the impugned article did not include his photo.
COMPLAINT
1. The applicants complained that their liability to pay damages and the restriction on publishing a photograph, reproduced from an old article about X, in connection with an article concerning X’s pending criminal proceedings had violated Article 10 of the Convention. Their purpose had not been to reveal any facts about X’s private life, but only to refer to the pending criminal proceedings. The charges were a matter of general interest and X was later given a heavy sentence.
2. They further complained under Article 6 of the Convention, notably §§ 1 and 3, that the Supreme Court had found them liable to pay damages on a point which had not been raised by the complainant. The Supreme Court’s judgment was based on the finding that the article fulfilled the requirements for constituting the offence of an invasion of X’s privacy. However, X had appealed to the Supreme Court only in respect of the amount of damages, and had not requested any compensation for the publication of her photograph.
THE LAW
A. Alleged violation of Article 10 of the Convention
The applicants complained under Article 10 of the Convention about the violation of their freedom of expression, on the ground that they had been ordered to pay damages for reporting on pending criminal proceedings which dealt with a matter of general interest. Their intention had not been to reveal any information about X’s private life. Article 10, in so far as relevant, provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information ... without interference by public authority ...
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.”
1. The parties’ submissions
The Government
The Government conceded that the liability to pay damages amounted to an interference with the exercise of the applicants’ right to freedom of expression under Article 10. The interference was nonetheless “prescribed by law”, having a basis in Chapter 27, section 3a of the then Penal Code and section 10, subsection 1, of the Constitution Act in force at the material time. The grounds relied on by the Finnish courts were undoubtedly consistent with the legitimate aim of protecting X’s private life.
The applicants had stated in their application that X could be identified in the reproduced article (although not easily). In another part of their application they stated that only X’s immediate circle could have identified her. The Government pointed out that the text of the earlier article which accompanied the 1997 article had mentioned X’s full name as well as her domicile. In their opinion, a glance through the article sufficed to identify the person concerned. Furthermore, X’s first name was mentioned in the magazine’s table of contents.
Referring to the cases of Lingens v. Austria (judgment of 8 July 1986, Series A no. 103, § 42) and Tammer v. Estonia (no. 41205/98, §§ 62 and 68, ECHR 2001‑I), the Government emphasised that in the present case X was the owner of a small cleaning business and thus did not hold an important position. Moreover, the case concerned the abuse of social insurance (her own pension), which was not a very important matter in terms of the public interest.
The Government observed that the publication of names has never been usual in news reports on offences. In particular, the publication of the names of suspects or accused persons has not been considered to be consistent with good journalistic practice. They noted that self-regulation within the mass media played a role in defining the limits on the protection of honour and privacy (in this connection, they referred to Selistö v. Finland, no. 56767/00, § 54, 16 November 2004). According to paragraph 26 of the Guidelines cited above, when reporting on offences, the publication of a name and other identifying information was justified only if it was in the public interest. The suspect’s identity was not to be published in advance of a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position to justify such a move.
Further, the Council for Mass Media in Finland (julkisen sanan neuvosto, opinionsnämnden för massmedier), a body which examines complaints concerning both the press and the electronic media, expressed an opinion as far back as 1981, stating that the publication of names in connection with offences was justified only if required in the public interest.
The Government observed that the present application differed from the case of News Verlags GmbH & Co.KG v. Austria (no. 31457/96, ECHR 2000‑I), which concerned the publication of a suspect’s picture in connection with a report on offences. In that case the media, other than the applicant company, were free to continue to publish the suspect’s picture throughout the criminal proceedings against him. Moreover, it was not the pictures but only their combination with the text that interfered with his rights. The absolute prohibition on the publication of the suspect’s picture went further than was necessary to protect him against defamation or against violation of the presumption of innocence.
Furthermore, in the Government’s opinion the question of who took the initiative of publishing the earlier article was irrelevant; this had also been the view of the Supreme Court.
Finally, compensation may be awarded for suffering under the domestic legislation. The amount of compensation that could be awarded for non-pecuniary loss was to be based on an equitable assessment made by the relevant court within the limits of its competence.
The applicants
The applicants observed at the outset that the present case, as well as other Supreme Court judgments restricting freedom of expression in the media, had received attention in Finland. A public debate had taken place, in which the Supreme Court’s judgments had been criticised. Further, in December 2005 the Supreme Court issued a precedent (KKO 2005:136) which concerned another article published in the “Alibi” magazine. In that case, the majority of the Supreme Court judges took the view that the magazine was entitled to publish the name of a convicted criminal. The incompatibility of that Supreme Court judgment with its judgment in the present case was, in itself, sufficient reason to find the present application admissible. The applicants also observed that it was difficult for the Finnish media to report on legal proceedings because the Finnish courts’ decisions had made it difficult to predict when disclosure of the identity of a defendant or convicted person was within the sphere of freedom of expression and the public nature of legal proceedings and when, in contrast, disclosure constituted a criminal offence giving rise to liability to pay damages. In the present case the Supreme Court had not even mentioned the Convention or its Article 10.
The applicants contested the Government’s view that the interference was prescribed by law. They stressed that the impugned article concerned a public trial, as provided in section 10 of the Constitution Act then in force and in the Act on the Public Nature of Court Proceedings and the Act on the Public Nature of Official Documents. The proceedings against X in the domestic court had been public, and only her medical records had been withheld. Furthermore, the District Court had held at least nine hearings before the impugned article was published. The applicants were surprised that neither the Government nor the Supreme Court had mentioned those provisions or the principle of the public nature of legal proceedings, given that the case related exclusively to the disclosure of the identity of a defendant in legal proceedings. Finnish legislation contained no provision which required the accused person’s consent prior to publication of his/her name or picture.
Further, at the relevant time the Constitution Act of Finland had not included a separate provision on the protection of privacy. The applicants also contested the view that criminal offences belonged to the realm of private life. The defendant’s identity in a trial had never before been considered as belonging to a person’s private life within the meaning of Chapter 27, section 3a of the Penal Code, and this principle still applied to public legal proceedings. For example, in its precedent KKO 2005:136 the Supreme Court majority had reached the opposite conclusion with regard to the publication of a convicted person’s name, ruling that “a criminal offence is not the private matter of the individual who [had] committed the offence”. In the applicants’ view, the Government defined the concept of private life far too broadly when they claimed that information was part of private life unless specifically found otherwise. This claim contradicted the provisions of the Act on the Public Nature of Court Proceedings.
The provision on the invasion of privacy required that, in order to constitute a criminal offence, the publication of the information had to be unlawful and intentional and had to relate to a person’s private life. The impugned article met none of these criteria. Firstly, the publication of public information, namely a person’s identity, was a legal right. Secondly, being accused of an offence in legal proceedings was not part of a person’s private life. Thirdly, the requirement of intent in criminal law was not met when a reporter had no idea that the disclosure of a defendant’s identity could constitute a criminal offence. The Supreme Court’s judgment in the present case was probably the first judgment in Finnish history in which the opposite view had been upheld. The appellate court had found, in accordance with legal precedent until the present case, that reporting on charges which were the subject of public legal proceedings was legitimate, even though the information published could cause anguish to the defendant.
Finally, the Guidelines for Journalists did not meet the requirement of “prescribed by law” since they could not be applied when deciding whether an act constituted a criminal offence. The applicants did not deny the ethical demands placed upon the profession by the Guidelines. They observed that, despite their legal rights, the applicants had sought to protect X’s identity in the article by crossing out her surname and her picture, but because of a printer’s error, her face and surname had been shown.
The applicants observed that the protection of X’s identity was not necessary in a democratic society. There was no pressing social need to depart from the established practice and regulations. In a democratic State, legal proceedings were public and a defendant’s identity was public information; this also served to ensure the legal protection of defendants.
Further, in the applicants’ opinion the question of whether the disclosure of X’s identity was necessary for the purpose of dealing with a socially important matter was irrelevant, since the provisions on the public nature of legal proceedings were not associated with matters of social significance; nor did offences belong to a person’s private life.
In any event, the legal proceedings against X had significance for society. Offences of tax and accounting fraud did not belong to private life, and fraud concerning a disability pension amounting to almost FIM 2.5 million was a major offence. X had ultimately received a heavy sentence.
The applicants also opined that it was not easy to identify X from the impugned article. The only people likely to have identified her were those in her immediate circle.
They also pointed out that it was established practice that persons who allowed themselves to be interviewed could be discussed in the public domain, even if the context was different. In the present case, X herself had taken the initiative of having an article about herself published in another magazine eight years previously.
Finally, the names of accused and convicted persons were published daily in the Finnish media. There was no legislative provision defining when a defendant’s identity could be revealed. In the present case, the applicant’s actions complied with the ethical guidelines for journalists and no complaints had been lodged with the Council for Mass Media. The criminal charges against X were significant enough to justify the publication of her name.
2. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
B. Alleged violation of Article 6 of the Convention
The applicants complained under Article 6 §§ 1 and 3 of the Convention that they had been unable to prepare their submissions to the Supreme Court properly, as they were found liable to pay damages on a point which had not been raised by the complainant, namely that the article invaded her privacy. The said Article, in its relevant parts, reads as follows:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...
...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence; ...”
The Court notes that the domestic courts dismissed the charges lodged by X against the applicants. Following the District Court’s judgment, X instituted civil proceedings against them, claiming that the impugned article incriminated and insulted her, or, in the alternative, that her picture had been published against her will, causing her mental suffering. Although her civil claim related to whether the impugned article fulfilled the requirements of an offence of defamation and/or invasion of privacy as provided in the Penal Code, there were no “charges” against the applicants within the meaning of Article 6 § 3 of the Convention. Consequently, Article 6 is not applicable under its criminal head. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.
Seen from the angle of Article 6 § 1 under its civil head, the Court does not find that the proceedings, taken as a whole, failed to disclose in the circumstances any appearance of unfairness contrary to that provision. In particular, it considers that X’s privacy-based complaint had been a live issue in the proceedings before the District Court and the Court of Appeal. Although X had not specified in her grounds of appeal that she relied on her right of privacy, it can be reasonably considered that X had wished to put before the Supreme Court all of her first-instance submissions in support of her complaints. The applicants cannot therefore maintain that they were unfairly taken by surprise when the Supreme Court found against them on the privacy point alone. This part of the complaint is accordingly manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicants’ complaint concerning the alleged violation of their freedom of expression;
Declares inadmissible the remainder of the application.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy