THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38318/97
by Henrik LUNDE
against Norway
The European Court of Human Rights (Third Section), sitting on 13 February 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 26 August 1997 and registered on 24 October 1997,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Norwegian national, born in 1963. He is represented before the Court by Mr Christian B. Hjort, a lawyer practising in Oslo, Norway.
The applicant is a sociologist and was at the material time employed by the Centre Against Racism (Antirasistisk senter) as a researcher. His application before the Court relates to the publication of a book in respect of which he was found to have defamed Ms I.-M.L. The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows.
In the autumn of 1993 the Centre Against Racism published a book, of which the applicant was the author, entitled “At the extremity” (“Aller ytterst”) with the subtitle “Racist groupings in Norway” (“Rasistiske grupperinger i Norge”). It was presented as a product of scientific research conducted by a sociologist, listing and describing the most important racist groupings and persons in Norway and presenting in chart form the connections between the various groupings. This included the names of some 60 persons, one third of whom had been convicted of offences of assault, some of murder, and sentenced to long terms of imprisonment.
The book comprised 9 Chapters entitled: 1. Neo-Nazism in Norway, 2. Neo-nazism in Norwegian, 3. The Race Warriors, 4. Norway is Ours, 5. To the Polls against Immigration, 6. Many Rivers Small, 7. Hitler’s Successors or just Silly People (this Chapter was divided into 5 sections: a. Many Differences but these are only Appearances, b. Contacts Abroad, c. Words and Contents, d. Methods, e. Consequences), 8. Society’s Response, and 9. But is that Something to be Concerned About?
On the cover of the book, the following is stated about the book’s contents:
“AT THE EXTREME is the first book to give an insight into current racist groupings in Norway.
Four years ago people in Germany laughed at Neo-Nazis distributing leaflets stating: ‘Germany for the Germans - foreigners get out’. Today the laughter has calmed down. Since the reunification 68 persons have been killed by Neo-Nazis.
Many people wonder whether the same could happen in Norway. Are the racist groupings in Norway Hitler’s successors or are they just a gang of silly fools?
No other political issue in Norway has roused people to the extent of the debate on immigration.
There are today more than twenty racist groupings which are against immigration.
Who are they? What do they do?
What consequences will this have for Norwegian society?
The answers may be found in this book.”
The book’s foreword includes the following statement:
“Many call them racists. They call themselves Nazis, Neo-Nazis, racists, nationalists or patriots. The labelling may be practical but the substance is more important. The groupings mentioned in this book are described as racists because, by words and deeds, they discriminate and harass individuals and groups on grounds of their ethnic origin, culture or religion.
People who form part of racist groups are not of any singular kind. They are not monsters, Hitler fans or mad. They are like ordinary people – almost.
Their solution to problems of anxiety and discontent, a channel for their hatred – is to have somebody to blame: If we get rid of immigrants, we may also be able to get rid of social problems such as narcotics, rape, stabbing and social security fraud?”
In Chapter 5, at page 60, a certain Ms I.-M.L. is mentioned as follows:
“ACROSS PARTY LINES ELECTORAL INITIATIVE (Tverrpolitisk Velgerinitiativ – hereinafter referred to as “the TVI”)
The above grouping is actually registered as a party. Its leader is Ms I.-M. L., and it operates from a mailbox at Bjølsen. It is a newsletter party which seldom appears publicly, except for Ms I.-M.L.’s participation in certain TV debates and her leaflets for The Norwegian Association (Den Norske Forening).”
The introduction to Chapter 5 stated that there were two registered parties hostile to immigrants in Norway and that
“today the parties emerge as an attempt to dress racism with a suit and a tie in order to lure people into believing that it is ‘an entirely ordinary party’ on the same line as other established parties.”
In Chapter 7 a., at page 78, it is stated:
“As usual in Norwegian society, it is men, in particular elderly men, who are the leaders, except for Ms H.S. (Najonaldemokratene) and Ms I.-M.L. (Tverrpolitisk Velgerforbund). The average age is lower within the militant groupings, but men lead these too. In the skin head milieus there is a stronger presence of young women than in other groups.”
Contrary to what is stated above, the TVI was not a registered political party but a grouping of 5 to 6 persons. Under Section 17 of the Parliamentary, County, and Municipal Elections Act 1985 (Act of 1 March 1985 No. 3, Valgloven), the signature of at least 5,000 persons entitled to vote in Parliamentary elections is a prerequisite for the registration of a party by the competent authority, namely the notarius publicus in Oslo. The lists of registered political parties are publicised. At present, there are some 20 registered political parties in Norway.
On 26 September 1994 Ms I.-M.L. instituted proceedings against the applicant before the Oslo City Court, claiming that the manner in which she had been mentioned in the applicant’s book constituted unlawful accusations of racism which were defamatory and warranted compensation. She felt particularly aggrieved and defenceless against such research, which was on a different level from ordinary public discussion. The risk of being described as a racist made it impossible to express one’s opinions in a public debate. Following the book’s publication, she feared reprisals from the far left and had had to bear derogatory remarks from neighbours. She was of the firm opinion that she was not a racist.
By judgment of 22 May 1995, the City Court acquitted the applicant. While finding that the book had indeed labelled Ms I.-M.L. as a racist it considered that it had been justified. In the City Court’s view the classical lexical definition of racism, which related to the belief that one race was superior to another according to physical and mental distinctions, ought to be supplemented by a more modern understanding of the concept. Ms I.M.L. had, by her own words and public connections, handled questions of immigration policy in a manner which, she should expect, would spark off reactions.
Ms I.-M.L. appealed to the Borgarting High Court (Lagmannsrett), which in a judgment of 18 October 1996 found unjustified defamation within the meaning of Article 247 of the Penal Code.
The High Court observed that, given the book’s title, in particular its subtitle, the comments on its cover page and the foreword, Ms I.-M.L.’s group, the TVI, was to be perceived as a racist group by the ordinary reader. The description of that group contained no reservation such as that made with respect to the Progress Party. The accusation of racism not only concerned the TVI but also extended to Ms I.-M.L. She was mentioned as the leader of the group and her name was cited twice. The book’s own definition of the concept of racism stated in the foreword should be decisive for the ordinary reader’s understanding of the book. Given the text on the cover page, taking as a starting point German Neo-Nazis and mentioning that 68 people had been killed by such Nazis, the reader would get the impression that the book dealt with clearly racist groups.
However, while Ms I.-M.L.’s remarks published by the Aftenposten on 24 August 1990 about the lack of common traditions between Norwegians and many immigrants or foreigners were deemed to border on racism, the High Court did not find that any of her published statements constituted proof of racism, even though they might be perceived as offensive by some immigrants. Her participation in a certain seminar (at which representatives of a number of racist groupings had been present) also fell within her freedom of expression and opinion. The same applied to the fact that, for a short time, she had held a post on the National Party’s interim governing
board in Oslo. Since these matters did not justify describing her as a racist the applicant had failed to prove that the accusations made against her were true.
Moreover, while the accusations – which encompassed allegations of discrimination and harassment on ethnic grounds – had been expressed in a book written by a researcher for ordinary sale and were serious, the applicant’s investigations into Ms I.-M.L. had been clearly deficient. The information contained in the book about Ms I.-M.L. and her group was erroneous, namely, the allegations that the group TVI had been registered as a political party, that Ms I.-M.L had taken part in television debates and that she had been involved in the distribution of leaflets for the Norwegian Association. It was clear that the applicant had in part confused Ms I.-M.L. with someone else. In the view of the High Court, had the applicant met the requirement of diligence that ought to apply, he would have avoided such errors, with the result that the TVI would have appeared as a particularly marginal group of little public interest. Probably, if the applicant had carried out reasonable research, this group would not even have been mentioned in the book.
Considering the case as a whole, the High Court found that the accusation that Ms I.-M.L. was racist, according to the book’s own definition, must be deemed inappropriate, and constituted punishable defamation.
Under Section 3-6 of the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969), the High Court ordered the applicant to pay 20,000 Norwegian kroner (NOK) to Ms I.-M.L. in compensation for non-pecuniary damage. The amount awarded took into account that, to the extent that she felt defamed, she had brought this largely on herself by her affirmations and recommendations. She had expressed views which had been offensive to many immigrants and which, if they were to be accepted, would make their situation difficult in Norway. Regard was also had to the fact that the book had brought the applicant little profit. Finally the applicant was ordered to pay NOK 60,000 for her costs before the City Court and the High Court.
On 27 February 1997 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal.
COMPLAINTS
The applicant complained that the High Court’s judgment of 18 October 1996 unjustifiably interfered with his right to freedom of expression guaranteed by Article 10 of the Convention.
THE LAW
The applicant complained that the High Court’s judgment of 18 October 1996 unjustifiably interfered with his right to freedom of expression guaranteed by Article 10 of the Convention, the relevant part of 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 ... .
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 ... for the protection of the reputation or rights of others ... .”
The applicant did not dispute that the interference was prescribed by law, namely Section 3-6 of the Damage Compensation Act 1969, and that it pursued the legitimate aim of protecting the reputation or rights of others. The Court sees no reason for finding otherwise.
However, the applicant was of the view that the interference was not “necessary in a democratic society” in pursuance of that aim. He maintained that the book was a contribution to the general public debate on a matter of vital political and ethical interest. The object of the book was to identify and describe groups and individuals who had publicly promoted views which were racist or hostile to immigrants. He attempted to describe the most important of these groupings and the possible connections between them, to explain the historical and sociological reasons for their existence and to assess their importance in society. For the sake of completeness, he had also commented on groups and persons who had made Norwegian immigration policies their principal concern, even though one could not establish a clear racist message from these groups. In this connection the applicant found it natural to comment on the TVI and Ms I.-M.L.
The applicant further submitted that there was nothing in his specific comments on Ms I.-M.L. which in itself was defamatory. The manner and context in which Ms I.-M.L. had been mentioned in the book could not be viewed as an allegation that she fell within the general criteria indicated in the foreword or on the cover page for characterising a person as racist. An ordinary reader would perceive her as a spokesperson for a policy which was hostile to immigrants, and some would even find her racist. Consideration of her newspaper articles as a whole, of her participation in a seminar with declared racists and her role in the local section of an antiimmigrant party would not lead to a different opinion about her than the book’s. It could not be decisive that the book contained a few incorrect factual errors, none of which concerned the matters deemed to be defamatory. In essential aspects the applicant had correctly described Ms I.M.L.’s political mission. The further question as to how one would label her political views was to a great extent a matter of personal political opinion.
The Court observes at the outset that, as indicated by its subtitle, the book presented a survey of “The racist groupings in today’s Norway”, based on research conducted by the applicant, a sociologist. It thus dealt with a matter of serious public concern. Any restriction placed by the Contracting States on the freedom of academics to carry out research and to publish their findings calls for the most careful scrutiny on the part of the Court.
However, it is to be recalled that Article 10 of the Convention does not guarantee unlimited freedom of expression even for publications of serious public concern. Under the terms of paragraph 2 of the Article, the exercise of this freedom carries with it “duties and responsibilities” which also apply to research publications. In a number of recent cases concerning restrictions on press freedom (see, for instance, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999-III), the Court has pointed out that these “duties and responsibilities” assume significance if the reputation of private individuals is under attack and the “rights of others” may be undermined. Moreover, by reason of the “duties and responsibilities” inherent in the exercise of freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (ibidem). In the view of the Court such considerations must also apply to the publication of academic research.
The Court will have particular regard to the words used in the impugned passages of the book and to the context in which they were published. It must also take into account the background to the case, namely the elimination of racial discrimination in all its forms and manifestations, a matter of vital importance.
The Court observes that the disagreement between the City Court, which found for the applicant, and the High Court, which found against him, related essentially to a difference of opinion as to the precise definition of the term “racism”. However, whilst it is not the Court’s role to resolve this difference, it accepts as reasonable the view held by the High Court that by naming Ms I.-M.L, without any precautionary reminders, inter alia as the leader of the TVI, one of the groupings dealt with in the book, the plaintiff was accused of being a racist within the meaning defined in the book. The book’s preface stated that the groupings identified in the book were “described as racists because, by words and deed, they discriminate and harass individuals and groups on grounds of their ethnic origin, culture or religion”.
The applicant’s book was presented as the product of scientific research conducted by a sociologist, listing and describing the most important racist groupings (including the TVI) and individuals in Norway, and presenting in chart form their various connections. This included the names of a relatively small number of persons, many of whom had been convicted of acts of violence and belonged to violent milieus. Whilst it was stated that Ms I.M.L. was the leader of the TVI and that this grouping was registered as a party, the introduction to the Chapter affirmed that there were two registered parties hostile to immigrants in Norway and that “today the parties emerge as an attempt to dress racism with a suit and a tie in order to lure people into believing that it is ‘an entirely ordinary party’ along the same lines as other established parties.” Under the heading “Hitler’s Successors or just Silly People”, subheading “a. “Many Differences but these are Appearances”, Ms I.-M.L. was mentioned as one of the few female leaders of such organisations. Although the book’s sale was limited, its claim to provide a scientific survey of racist forces “At the Extremity” of Norwegian society meant that its potential impact on the plaintiff’s reputation was considerable. The particular stigma attached to being mentioned in such a publication must have implications for the “duties and responsibilities” of its author in his exercise of academic freedom, and the need to protect personal reputations (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31, and Andreas Wabl v. Austria, no. 24773/94, § 41, 21 March 2000, unpublished).
However, according to the findings of the High Court, the applicant’s investigations into the plaintiff were deficient since, on the facts, specific information he gave about Ms I.-M.L. and her group was erroneous (cf. the De Haes and Gijsels v. Belgium judgment of 24 February 1997, Reports 1997-I, § 39). While the TVI in fact was a minor grouping comprising no more than 5 to 6 persons, the book incorrectly described it as a registered political party, which under the relevant domestic law required the signatures of at least 5,000 electors. Nor was it true that Ms I.-M.L. had participated in television programs or had distributed leaflets for the Norwegian Association. The applicant had in part confused her with another person. The applicant conceded that there were certain inaccuracies in the information about the plaintiff and the TVI. Moreover, according to the High Court, without these errors, the TVI would have appeared as a marginal group of little public interest and may not even have warranted a mention in the book. Thus, it appears that the book’s implied accusation against Ms I.-M.L. of “racism” was presented with factual statements which proved to be untrue. In the Court’s view, these could not be regarded as immaterial, but were essential, to the defamatory accusation in question. Although it would have been easy for the applicant to verify the truth of this information, at least that concerning the nature of the TVI, it does not appear from the evidence that he took any steps to this effect.
In these circumstances, and bearing in mind the scientific character of the publication and the seriousness of the accusation levelled against Ms I.M.L., the Court does not attach any weight to certain evidence, not referred to in the book, but adduced by the applicant in the ensuing defamation case in order to show that the plaintiff Ms I.-M.L.’s conduct was indeed racist. In this connection, it should be recalled that, according to the High Court, the conduct in question fell outside the notion of racism relied on in the book, which finding seems undisputed by the applicant. As can be deduced from his submissions, by mentioning Ms I.-M.L. in the book, it had not been his objective to brand her a racist.
Finally, the Court is mindful of the fact that, by being identified with the extremist and in part violent milieus depicted in the book, Ms I.-M.L. had feared for her own safety.
Against this background, the Court is satisfied that, in finding that the interest in protecting the plaintiff’s reputation outweighed the applicant’s freedom of expression, the High Court’s decision was based on reasons which could reasonably be regarded as relevant and sufficient. It concludes that the interference with the applicant’s freedom of expression was not disproportionate for the purposes of the necessity test under Article 10 § 2 of the Convention.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy