FOURTH SECTION
Application no. 54145/10
Erla HLYNSDOTTIR
against Iceland
lodged on 31 August 2010
STATEMENT OF FACTS
The applicant, Ms Erla Hlynsdóttir, is an Icelandic national, who was born in 1978 and lives in Reykjavík. She is represented before the Court by Mr Gunnar Ingi Jóhannsson, a lawyer practising in the same city.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a journalist, working for the newspaper DV.
In May 2007 the Director of Public Prosecution issued an indictment against two individuals for having imported cocaine into Iceland. The cocaine had been hidden in a Mercedes Benz vehicle where it had been discovered by customs officers. The police had removed the cocaine and put another substance in its place. One of the accused, Mr A, had collected the car from customs and had paid customs duties for it. He and the other accused had driven the vehicle to a garage where the substance had been removed.
The newspaper DV published an article on 5 July 2007 on criminal proceedings before the Reykjavík District Court. A picture of Mr A had been published on the front page of the newspaper, showing him walking into the court room. There was a big headline under the photograph which stated: “Scared cocaine smugglers” and underneath it was stated that both the accused were afraid of retaliation by their accomplices and that they therefore had refused to identify them. Mr A´s name also appeared on the front page as well as a text stating that he could expect seven to eight years´ imprisonment, and the co-accused three to four years´, for removing the substance.
The article was printed on page two in the newspaper and the applicant was identified as its author. Another photograph of Mr A appeared there and his name appeared again. The article stated that Mr A had been afraid to reveal the identity of the man he claimed had actually been behind the importation, and that he feared for his own and his family’s safety. The article stated the following: “The Director of Public Prosecution is requesting a punishment of seven to eight years´ imprisonment in respect of [Mr A], who has been charged with importing nearly 3.8 kilograms of cocaine, intended for sale, together with an unknown accomplice. A punishment of three to four years is requested in respect of [Mr B] who is also charged in the case with having, in co-operation with [Mr A], removed the alleged drug from the vehicle. The cocaine was hidden in a vehicle which [Mr A] imported into the country and took possession of in February 2007, believing that the cocaine was still in its place, but the police had already confiscated the cocaine and replaced it with a decoy drug.”
By a judgment of 12 July 2007 the District Court acquitted Mr A and the co-accused of all charges and on 29 May 2008 the Supreme Court upheld the acquittal.
On 21 October 2008 Mr A lodged defamation proceedings before the Reykjavík District Court against the applicant and Mr S.M.E., who was the editor of DV at the time. In his writ he requested that the following statements published by DV in the relevant issue, be declared null and void:
A. “Scared cocaine smugglers”.
B. “The cocaine was hidden in a car that [Mr A] imported into the country believing that the cocaine was in its place but by then the police had confiscated the drug and replaced it with another substance...”
In addition, Mr A requested that the respondents, in solidum, be ordered to pay him 2,500,000 Icelandic krónur (ISK) in respect of non-pecuniary damages and ISK 500,000 to cover the costs of publishing the judgment in the case in three newspapers.
Mr A argued that the responsibility for the statements lay with the applicant as the author of the article, in accordance with section 15 (2) of Act no. 57/1956. No one had been identified as the author of the heading on the front page and therefore the publisher or editor was responsible for it, (cf. section 15 (3) of the same Act).
By a judgment of 26 June 2009 the District Court found for the applicant and the editor. In its reasoning it referred to the right to freedom of expression and the protection of private life as guaranteed by the Icelandic Constitution. It further stated:
“When there is an overlap of the defendant’s aforementioned interests to enjoy the freedom of expression and the plaintiff’s interests to enjoy respect for his private life, it must be examined whether the publication of the material, for which the defendants are responsible, can be considered to have taken place in the context of a general public debate and therefore to be relevant to the public. The disputed comments appeared in newspaper coverage of public criminal proceedings in which the plaintiff had been accused of a serious crime. The proceedings were open to the public and to those who wanted to observe, in accordance with the usual practice, and the defendants’ account is in accordance with what was revealed at the proceedings. The news reporting on criminal cases that are being tried before the domestic courts must be considered normal and a part of a journalist’s work. It cannot be required that news reporting awaits the outcome of a trial before news can be published. It makes no difference that the plaintiff was later acquitted of the charges. It must therefore be held that the published material, at the time it was published, was relevant to the public and was newsworthy. Although the headline on the front page is dramatised, it has to be kept in mind that it refers to what was revealed during the testimony of the plaintiff in the criminal case, i.e, that he did not want to reveal the name of the person for whom he was indicted for importing the drugs, as he feared for his own and his family’s safety. In light of all this, the statements are not considered to have been insulting or hurtful to the plaintiff, cf. Article 234 of the Penal Code, or to contain an insinuation, cf. Article 235 of the same Code. Moreover, they will not be deemed to have been an illegal injury against his character and honour. [...]”
Mr A appealed against the District Court’s judgment to the Supreme Court.
By a judgment of 11 March 2010 the Supreme Court overturned the District Court judgment and ordered the applicant and the editor to pay the appellant ISK 100,000 (approximately 575 euros) in compensation for non‑pecuniary damage, plus interest, and ISK 50,000 for the costs of publishing the judgment. Its judgment contained the following reasons:
“When the statements, which the case concerns, appeared in DV on 5 July 2007, the case was pending before the District Court, in the prosecution’s case against the appellant and another man. This was clearly stated in the article, in which the substance of the charges against them was rendered, along with few essential points from the prosecution’s evidence and the statements which they had given at the hearing. It is not argued that the narrative was in any way incorrect, with the exception of the statements which his claims in this case concern. The writings concerned a serious criminal case, which was being tried at a public hearing, and therefore was not subject to any limitations under Article 10 of the Code on Criminal Procedure no. 19/1991, in force at the time, that the media utilised its freedom [of expression] under Article 73 of the Constitution, to report on the case, including to identify the accused. However, in that discussion special attention had to be given to the fact that it is the role of the courts, not the media, to determine whether accused men are guilty of an offence.
As mentioned before, the appellant was acquitted of the [...] criminal charges by a judgment of the District Court exactly one week after the publication of the statements in DV, and that conclusion was unaltered after the adoption of the Supreme Court judgment of 29 May 2008. With that conclusion, it was thus rejected that the appellant and the co-accused had in this case been found guilty of being “cocaine smugglers” and also that the appellant in February 2007 had taken possession of the aforementioned vehicle ‘believing that the cocaine was in its place’, but these two matters were asserted in the statements, which the appellant seeks the annulment of, without any reservation referring to the fact that the assertions were based on an indictment, which was being refuted before a court. Bearing in mind the results of the case initiated by that indictment, these statements contained an insinuation against the appellant and there are no grounds not to accept his claim to declare them null and void. As regards other statements, which the appellant claims should be declared null and void, it must be held that the word ‘scared’ in the headline on the front page contained a value judgment and in addition was supported with comments given by the appellant and the co-accused during the criminal proceedings. The narrative in the article inside the newspaper, stating that the cocaine had been hidden in the vehicle which the appellant imported into the country and took possession of in February 2007, after the police had confiscated the drugs and replaced them with another substance, represented only a description of facts that were substantiated during the criminal proceedings. There are therefore no grounds to declare the statements relating to this null and void.
The statements which are declared null and void were published in an article, of which [the applicant] was named as the author, except for one word in the headline on the front page. She is liable to pay compensation for them, cf. section 15 (2) of the Printing Act no. 57/1956. On the other hand no one was identified as the author of the front page headline and therefore liability to pay compensation for it falls on the defendant [Mr S.M.E.] as the editor of the newspaper, cf. section 15 (3) of the same Act. The statement in the front page headline and in the article on page 2 were so linked that the defendants must be ordered jointly to pay compensation for them. It is considered that since, in the present case, declaring the statements null and void alone rectifies the appellant’s position to a great deal, compensation in the amount of ISK 100,000 shall be awarded, with default interest, as further specified in the operative part of this judgment. With reference to Article 241 (2) of the Penal Code, the defendants must also be ordered to pay ISK 50,000 to the appellant to cover the costs of publication of the outcome of this case, but he has not claimed interests on that amount.”
B. Relevant domestic law
A summary of the relevant domestic law may be found in paragraphs 20 to 24 of the Court’s judgment in Björk Eiðsdóttir v. Iceland, no. 46443/09, of 10 July 2012.
COMPLAINT
The applicant complains that the Icelandic Supreme Court’s judgment of 11 March 2010 entailed an interference with her right to freedom of expression under Article 10 of the Convention that was not “necessary in a democratic society”.
QUESTIONS TO THE PARTIES
1. Did the Supreme Court’s judgment of 11 March 2010 entail an interference with the applicant’s right to freedom of expression as guaranteed by Article 10 of the convention?
2. Was the interference complained of “necessary in a democratic society”? In other words, did it correspond to a “pressing social need”, were the reasons adduced by the national authorities to justify the interference “relevant and sufficient” and were the measures taken “proportionate to the legitimate aim or aims pursued”? In this connection, did the Supreme Court, in its judgment of 11 March 2010, apply standards that were in conformity with the principles embodied in Article 10 of the Convention as interpreted in the Court’s case-law?
Full & Egal Universal Law Academy