Communicated on 20 November 2015
FIRST SECTION
Application no. 58493/13
Steingrimur Saevarr OLAFSSON
against Iceland
lodged on 20 August 2013
STATEMENT OF FACTS
The applicant, Steingrímur Sævarr Ólafsson, is an Icelandic national who was born in 1965 and lives in Reykjavik. He is represented before the Court by Jónas Friðrik Jónsson, a lawyer practising in Reykjavik.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time, the applicant was an editor for the web-based media site Pressan.
On 2 November 2010 two adult sisters published an article and a letter on their website encouraging people to study the background of candidates in the forthcoming Constitutional Assembly elections. In particular, the sisters warned against A, a relative of theirs, who was standing for election. In the letter they alleged that A had sexually abused them when they were children. The sisters had previously sent the letter to their relatives, the police and the child protection services. For some unknown reason, the police had not instigated an investigation.
On 7 November 2010, Pressan published an article about the sisters’ allegations. The article was based on an interview with one of the sisters and on the letter posted on their website. Pictures of the sisters were published with the article.
On 8 November 2010 Pressan published an article about comments made by A to another newspaper where he rejected all the allegations and threatened Pressan with a lawsuit for being the first to publish the allegations. Furthermore, the article contained comments from one of the sisters. Pictures of one of the sisters and A were published with the article.
On 27 January, 22 and 23 February, and 30 May 2011, Pressan published further articles about the matter based on the sisters’ statements on their website and in other media interviews, on A’s comments in other media and on A’s daughter’s comments in a television interview. Pictures of the sisters were published with all the articles.
Other media also published articles and interviews with the sisters.
In the meantime, on 10 April 2011 A lodged defamation proceedings before the Reykjavík District Court against the applicant and requested that the following statements be declared null and void:
A. “Sisters: We will not keep quiet while a child abuser stands for election to the Constitutional Assembly”
B: “We could not sit quietly by while a child abuser stands for election to the Constitutional Assembly”
C: “I do not know whether our actions are legal, however that is a secondary point. The man is dangerous and on the loose”
D: “The sisters will not be silenced by [A’s] daughter – Child abuse is not the private affair of his family”
E: “Child abuse is never a private affair that the family of child abusers can undertake to solve. Child abuse is a crime”
F: “Child abusers should not be allowed to hide – Forgiveness cannot entail co‑dependency”.
According to Section 15, subsection 3, of the Print Act (no. 57/1956, Lög um prentrétt) the publisher or editor is liable for publication if no author is identified. A argued that responsibility for the statements lay with the applicant as the editor of Pressan by virtue of Section 15 of the Print Act, applied by analogy, since the author of the articles was not identified.
During the proceedings before the District Court, the author of the articles was identified as B. He gave a witness statement before the District Court but was not involved further in the proceedings.
By judgment of 22 February 2012 the District Court found in favour of the applicant.
As regards the issue of legality, the District Court came to the conclusion that Section 15 of the Print Act did not apply to material published solely on the internet and that section 15, subsection 3, could not be applied by analogy in the case. However, the District Court stated that a supervisory obligation was placed on editors of web media, where articles were published without identifying the authors, and that the editor was obliged to ensure that material published on web-based media did not cause others harm or interfere with a person’s private life. Therefore, the District Court rejected the applicant’s claim that the case was wrongly directed against him.
As regards the merits of the case, the judgment contained the following reasons:
“When the statements in sections A-C are compared to the sisters’ writings on their website on 2 November 2010, the court has to agree with [the applicant] that both the headline in section A and the statements in sections B and C are verbatim from their letter. ... Furthermore, it cannot be overlooked that the sisters’ allegations were not emerging for the first time because of [A’s] candidacy; they had been proclaimed for at least a few years and were known to many, including the police. [The applicant] was therefore not publishing an accusation that was being directed against [A] for the first time, but distributing further accusations regarding offences that had emerged long before. [The applicant’s] arguments about the public having the right to be informed about the candidates in public elections cannot be ignored. By introducing themselves publicly to gain voters’ confidence and to persuade people to vote for them, [candidates] in a way become public persons and cannot expect all media coverage about them to be as positive as their own. Disputes, resolved and unresolved, regarding their earlier behaviour are matters to which one can expect attention to be drawn. By competing for voters’ attention, candidates usually undertake to be heavily criticised and have to tolerate this up to a point, although that point should be determined on a case-by-case basis. [The applicant] did not present the sisters’ allegations as his own, he just disseminated them further. Therefore, he will not be held accountable for the statements which are directly quoted from the sisters, which the latter have confirmed before the court to be theirs. The court does not agree with [A] that [the applicant] went beyond the limits of his freedom of expression under Article 73 of the Constitution.”...
“The statements in sections D and E were published on 23 February 2011 when the elections for the Constitutional Assembly were over. [A’s] daughter had discussed the sisters’ writings about her father in a television interview and declared, inter alia, that he was not a public person and that accusations about child abuse did not belong in the media. The sisters reacted to this criticism on their website and then [Pressan] published their reactions. ... No new discussions about [A’s] case were initiated by the sisters this time, their writings were by way of reply. The statement in section D that appeared as a headline on [Pressan] quotes the sisters’ replies but is partly rephrased. The statement in section E published in an article on [Pressan] is mostly directly quoted. However, this statement can be understood as a statement by the media itself. Even though the statement is not directly quoted, it is of a general nature and refers to child abusers in general. The sisters have also testified before the court that they consider that they have been correctly quoted. So the court concludes that [the applicant] did not go beyond the limit of the freedom of expression guaranteed in Article 73 of the Constitution, with the statements in sections D and E.”
On 1 August 2012 A appealed against the District Court’s judgment to the Supreme Court.
By a judgment of 21 February 2013 the Supreme Court partly overturned the District Court’s judgment and found the statements in sections A, B, D and part of the statement in section C to be defamatory and ordered the applicant to pay 200,000 Icelandic Krónur (ISK) plus interest as compensation. The statements were declared null and void.
As regards the issue of legality, the Supreme Court noted that the author of the articles had been identified and that the applicant had confirmed that he agreed to the publication of the articles. The Supreme Court also confirmed that Section 15 of the Print Act did not apply to material solely published on the internet. Furthermore, the Supreme Court stated that Section 15, subsection 3, of the Print Act could not be applied by analogy in the case. However, the applicant had a supervisory obligation which entailed that he should conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. The Supreme Court referred in this respect to a Supreme Court judgment of 24 November 2011. Therefore, the Supreme Court rejected the applicant’s claim about the case being wrongly directed against him.
As to the merits of the case, the judgment contained the following reasons:
“The court can agree with [the applicant] that candidates for assignments in the public interest have to endure a certain amount of public discussion of their ability and skills and attributes and whether or not they can be trusted to bear this kind of responsibility. However, this cannot justify that [A], without any further or additional information, was accused of this criminal act in the media, [act] punishable by the Penal Code. Here we have taken into account that [A] has not been found guilty of the conduct nor has he been under investigation because of it. It does not change anything that the journalist discussed the matter with [A] and others, who claimed they could testify about the incident, while working on the story and [A] rejected the allegations. In the light of the aforementioned, the limitation on the freedom of expression had to be justified in accordance with Article 73(2) of the Constitution.”
B. Relevant domestic law
The relevant provision of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) reads as follows:
Article 73
“Everyone has the right to freedom of opinion and belief.
Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression.
Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.”
The Penal Code No. 19/1940 (Almenn Hegningarlög), Chapter XXV, entitled “Defamation of character and violations of privacy”, sets out the following relevant provisions:
Article 234
“Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment for up to one year.”
Article 235
“If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment for up to one year.”
Article 236
“Anyone who, against his or her better knowledge, makes or disseminates a defamatory insinuation shall be liable to up to two years´ imprisonment.
Where such an insinuation is published or disseminated publicly even though the person publishing or disseminating it has no reason to believe it to be correct, the sentence shall be a fine or up to two years´ imprisonment.”
Article 241
“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party.
A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter’s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”
Section 26(1) of the Tort Liability Act No. 50/1993 (Skaðabótalög) reads:
“A person who
a. deliberately or through gross negligence causes physical injury or
b. is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.”
The Printing Act No. 57/1956 (Lög um prentrétt), Chapter V, on the liability for the content of publications, contains the following relevant provisions.
Section 13
“Any person who publishes, distributes, or is involved in the publishing or distribution of any publication other than a newspaper or periodical shall bear criminal liability and liability for damages pursuant to the general rules of law if the substance of the publication violates the law.”
Section 15
“As regards liability for newspapers or magazines other than those listed in section 14, the following rules shall apply:
The author is subject to criminal liability and liability for damages if he or she is identified and either resident in Iceland when the publication is published or within Icelandic jurisdiction at the time proceedings are initiated.
If no such author is identified, the publisher or editor are liable, thereafter the party selling or distributing the publication, and finally the party responsible for its printing or typesetting.”
Section 51 of the Media Act No. 38/2011 (Lög um fjölmiðla) reads:
Article 51
“Liability for textual content.
If textual content is in violation of the law, penalties and criminal and compensatory liability shall be as follows:
a. An individual shall be liable for the content he writes in his own name or with which he clearly identifies himself if he is domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds. If textual content is correctly quoted as being that of a named individual, the person quoted shall be liable for his own statements if he gave consent for their being published or made available and he is either domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds.
b. The purchaser of commercial communications, whether an individual or a legal person, shall be liable for their content if he is domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds.
c. In instances other than those covered by items a and b above, the content manager in question and/or the person liable for the media service provider shall be liable for the content published.
Media service providers shall be liable for the payment of fines and compensation payments that their employees may be ordered to pay under this Article.
Media service providers shall be obliged to provide any persons who consider they are the victims of a violation as a result of the publication of text content with information indicating who is liable for the content.”
COMPLAINTS
The applicant complains that the Supreme Court’s judgment of 21 February 2013 entailed an interference with his right to freedom of expression under Article 10 of the Convention that was not prescribed by law and not necessary in a democratic society.
QUESTIONS TO THE PARTIES
1. Was the editorial liability placed on the applicant in the present case prescribed by law?
2. Did the Supreme Court, in its judgment of 21 February 2013, apply standards that were in conformity with the principles embodied in Article 10 (and Article 8) of the Convention, as interpreted in the Court’s case-law?
3. 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?
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