THIRD SECTION
DECISION
Application no. 52737/18
Gudmundur Spartakus ÓMARSSON
against Iceland
The European Court of Human Rights (Third Section), sitting on 24 November 2020 as a Committee composed of:
Georgios A. Serghides, President,
Georges Ravarani,
María Elósegui, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to the above application lodged on 1 November 2018,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Guðmundur Spartakus Ómarsson, is an Icelandic national who was born in 1986 and lives in Hafnarfjörður. He was represented before the Court by Mr Vilhjálmur H. Vilhjálmsson, a lawyer practising in Reykjavik.The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant was the subject of numerous news reports published by a number of news outlets in January 2016, which discussed reports that he had been involved in criminal activity abroad. One of the news reports on the subject was published by the online news outlet Hringbraut.is (hereinafter H.). The news article, in full, reads as follows (with the impugned statements underlined and numbered):
“Guðmundur Spartakus Ómarsson said to be high-ranking in a large drug-smuggling ring (1): Icelandic drug lord in South America? (2)
The Paraguayan press states that an Icelander is high-ranking within a South American drug-smuggling ring (3).
This is reported by the Icelandic National Broadcasting Service [Ríkisútvarpið].
According to the National Broadcasting Service’s report, the Brazilian police believe the Icelander smuggles drugs between Europe and South America (4). [And] that he operates under a false identity, pretending to be a German real-estate agent (5).
Guðmundur Spartakus Ómarsson is the name of the suspected Icelander (6). The news outlet ABC in Paraguay claims that he is one of the most powerful persons in a drug-smuggling ring, smuggling ecstacy and cocaine between Europe and South America (7). [And] that he has hired a drug mule who, in one instance, trafficked 46,000 pills (8). [And] that the drug mule, a woman, had mentioned the Icelander, according to South American media. Nothing has been heard from Guðmundur for two years according to what has been reported, but [the news outlet] DV reports that his father says he talked to him over Skype last New Year.
Furthermore, Guðmundur’s name has been connected with the disappearance of an Icelander in South America. He is said to be very dangerous (9) according to the report by the National Broadcasting Service, which can be read in full here: [link].”
4. The applicant brought private criminal proceedings for defamation against S.E.R., the editor of H., on account of the news article. The applicant demanded that certain statements be declared null and void, and that S.E.R. pay him 2,000,000 Icelandic krónur (approx. 16,800 euros at the time of the events) in damages for personal injury, plus interest.
5. By a judgment of 4 April 2017, the District Court of Reykjavik dismissed the applicant’s claims. At the outset, the District Court took note of the competing constitutional rights at stake in the case: on the one hand, the applicant’s right to respect for his private life under Article 71 of the Constitution; and on the other hand, the defendant’s freedom of expression under Article 73 (see paragraph 14 below). The District Court then went on to reason as follows:
“When deciding whether the defendant unlawfully infringed the [applicant’s] reputation by publishing and disseminating comments which injured the latter’s honour, the manner in which the impugned comments were presented must be considered. The defendant’s news article stated that it was based on the news report by the National Broadcasting Service, news articles published on ruv.is [the National Broadcasting Service’s website], mbl.is [another news outlet’s website] and articles published by [the news outlet] ABC Color in Paraguay.
When the defendant published the statements which the [applicant] demands be declared null and void on 15 January 2016, other news outlets had discussed the substance of the [applicant’s] case. The court considers it clear that the defendant’s reporting on the [applicant] was substantively the same as that previously published by the National Broadcasting Service on 11 January 2016 and on the National Broadcasting Service’s website on 14 January 2016.
When assessing how to balance the freedom of expression, protected by Article 73 of the Constitution, and the right to respect for private life, protected by Article 71, it is important to consider whether the published material can be considered part of a public discussion and is thus relevant to the public. The press plays an important role in disseminating information and opinions on social issues. The public has a right to receive information on such issues and particularly pressing reasons are needed to justify the necessity to limit the freedom of the press in a democratic society, as discussed in Supreme Court judgments, including a judgment from 15 November 2012 in case no. 69/2012. Such limitations can be appropriate if false statements are published or disseminated publicly against the publisher’s better knowledge. These principles are applicable to the defendant’s reporting on the [applicant], seeing as it is part of the press’s role to report on serious issues which could be criminal.
With his reporting, the defendant did not take a stand on the truthfulness of the reports. Taking into consideration that the impugned statements were based on the reporting of other news outlets, the court considers, in the circumstances of this case, that the defendant cannot be expected to enquire, or criticised for not having enquired, specifically about the truthfulness of the impugned statements. It cannot be asserted that the defendant knew the statements to be untrue or disseminated against its better judgment.
Considering all of this, it cannot be found that the defendant’s reporting infringed the [applicant’s] honour in such a way as to exceed the permissible boundaries of the freedom of expression under Article 73 § 3 of the Constitution. The [applicant] can therefore not be entitled to compensation under section 26 (b) of the Tort Liability Act no. 50/1993.”
6. The applicant appealed to the Supreme Court. By a judgment of 3 May 2018, the Supreme Court upheld the District Court’s finding. At the outset, the Supreme Court established that the Media Act no. 38/2011 (see paragraph 17 below) was applicable to the news outlet H., and that as the article had not been labelled as written by a particular author, S.E.R. was, as H.’s designated responsible person, criminally and compensatorily liable for its content, pursuant to section 51(1)(c) of the Media Act. The judgment then stated:
“When assessing whether this material triggers such liability, it must be kept in mind that in a democratic society, the press has a role to disseminate information on important issues, a role which is protected by Article 73 of the Constitution. The subject of the article undoubtedly concerned such an issue.
In the text of the short article, which was published on the website on 15 January 2016, it was explicitly stated three times that certain elements of it were based on the reporting of the National Broadcasting Service, in one instance another national news medium was cited, and finally Paraguayan media were cited twice. Apart from this, it is clear from the phrasing of the article that it was assumed that its content was based on these same sources. In total, this content was thus actually presented as a report on the reporting of other particular news outlets. There is no reason to doubt that the defendant could in good faith trust that those news outlets had, in their reporting, respected the basic principles which the media are bound to adhere to; see inter alia, section 26(1) of Act no. 38/2011 [see paragraph 17 below].”
7. Concerning the first statement (see paragraph 3 above), which mentioned the applicant by his full name and stated that he was “said to be high-ranking in a large drug-smuggling ring”, the Supreme Court stated the following:
“From the context of this headline with the content of the article, there was clearly a reference to this being reported on the National Broadcasting Service’s website. Admittedly, the article on that website did not mention the [applicant’s] last name, but it displayed the aforementioned picture from his passport. This statement was otherwise not taken verbatim from the National Broadcasting Service’s article, but that article on the other hand discussed the [applicant] as a powerful drug smuggler with extensive operations and as one of the leaders behind large-scale drug smuggling. Those words have a corresponding meaning.”
8. Concerning the second statement (see paragraph 3 above), the Supreme Court stated:
“[In the second statement], the question was posed whether the [applicant] was a ‘drug lord’ in South America. The above-cited words in the National Broadcasting Service’s article substantively supported such a question, but the choice of words can otherwise be considered to be a value judgment, which is further underlined by the use of the question mark at the end of the headline.”
9. Concerning the third and fourth statements (see paragraph 3 above), the Supreme Court assessed that, since the statements only asserted that other news media had reported on the accusations in question, the statements were correctly cited and factually correct.
10. Concerning the fifth statement, the Supreme Court asserted that taken in context with the sentences preceding it, it was clear that this was based on the previously mentioned reports and was correctly cited.
11. Concerning the seventh and eighth statements, the Supreme Court asserted that since these were correctly cited from the National Broadcasting Service’s reports, which in turn had cited Paraguayan media, these statements were also factually correct.
12. Concerning the ninth statement, the Supreme Court held that the National Broadcasting Service’s reports to which the impugned article had been linked had indeed discussed a missing person case, which had also been written about in another article on the same medium. Although the description of the applicant as being “very dangerous” had not been used in the cited reports, the Supreme Court considered that to constitute a value judgment which had been justified by the content of those reports.
13. Considering all of this, the Supreme Court found there to be no merit to the applicant’s demands and confirmed the District Court’s judgment.Relevant domestic law
14. The relevant provisions of the Icelandic Constitution (Stjórnarskrá lýðveldisins Íslands) read as follows:
Article 71
“Everyone shall enjoy freedom from interference with privacy, home and family life.
...
Notwithstanding the provision of the first paragraph above, freedom from interference with privacy, home and family life may be otherwise limited by statutory provisions if this is urgently necessary for the protection of the rights of others.”
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 on 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.”
15. Chapter XXV of the Penal Code no. 19/1940 (Almenn hegningarlög), entitled “Defamation of character and violation 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, at the latter’s request, 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.”
Article 242
“The offences referred to in the present Chapter shall be subject to indictment as follows:
...
3. Lawsuits on account of other offences may be brought by the injured party alone.”
16. 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 compensation for non-pecuniary damage to the injured party.”
17. The Media Act no. 38/2011 (Lög um fjölmiðla) sets out the following relevant provisions:
Section 26
Basic democratic principles
“A media service shall in its work honour basic democratic principles and protect freedom of expression. It shall respect human rights and equality, as well as the right to private life, unless the democratic role of a media service and the public’s right to information demand otherwise. A media service shall ensure that it fulfils requirements of objectiveness and accuracy in news reporting and news-related content and seeks to present different viewpoints, both those of men and women.
A media service which has the avowed policy of advocating for a certain cause shall not be obliged to disseminate material which directly contradicts that policy.”
Section 51
Liability for textual content
“If textual content is in violation of the law, 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 to 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 other instances, the person designated as responsible for the medium shall be liable for the content published.
Media service providers shall be liable for the payment of fines and compensation that their employees may be ordered to pay under this section.
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
18. The applicant complained under Article 6 § 2 of the Convention that the Supreme Court’s finding in his defamation case violated his right to be presumed innocent until proved guilty. He furthermore complained under Article 8 § 1 that the finding violated his right to respect for his private life.
THE LAWalleged violation of the right to be presumed innocent until proved guilty under article 6 § 2
19. Article 6 § 2 of the Convention reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
20. Concerning his complaint under Article 6 § 2, the applicant submitted that the Supreme Court’s finding was akin to permitting anyone to accuse him of criminal behaviour without consequence.
21. The Court notes that the applicant was not charged with a criminal offence and that his complaint does not relate to public comments by governmental authorities of the Respondent State (see Allen v. the United Kingdom [GC], no. 25424/09, §§ 93-94, ECHR 2013). Article 6 § 2 therefore does not apply to the present case (see, for instance, Moullet v. France (dec.), no. 27521/04, 13 September 2007). This complaint is therefore incompatible ratione materiae with the provisions of the Convention and must be rejected, pursuant to Article 35 §§ 3 (a) and 4.alleged violation of THE RIGHT TO respect for private life under article 8
22. Article 8 of the Convention reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
23. Concerning his complaint under Article 8, the applicant submitted that the Supreme Court’s conclusion failed to protect his right to respect for his private life, as he had not been indicted or convicted of the crimes which H.’s article alleged he had committed.
24. The right to protection of reputation is encompassed by Article 8 of the Convention as part of the right to respect for private life, even if the person is criticised in a public debate (see Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007‑XII; Petrie v. Italy, no. 25322/12, § 39, 18 May 2017; and Egill Einarsson v. Iceland (no. 2), no. 31221/15, § 31, 17 July 2018). The same considerations apply to a person’s honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007, and A. v. Norway, no. 28070/06, § 64, 9 April 2009). In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see, inter alia, Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, ECHR 2017).
25. The object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities. However, this provision does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there are positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see, inter alia, Airey v. Ireland, 9 October 1979, § 32, Series A no. 32, and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013).
26. The Court notes that in order to fulfil its positive obligation to safeguard one person’s rights under Article 8, the State may have to restrict to some extent the freedom of expression of another person, secured under Article 10. When examining the necessity of such a restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, 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 as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see, inter alia, Bédat v. Switzerland [GC], no. 56925/08, § 74, ECHR 2016, and Egill Einarsson (no. 2), cited above, § 34). The criteria to be taken into account when performing such a balancing exercise have been discussed in numerous judgments of the Court, including Axel Springer AG [GC] (cited above, §§ 89-95) and Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 109-13, ECHR 2012).
27. The Court has held that the right of journalists to impart information on issues of general interest requires that they act in good faith and on accurate factual basis, providing “reliable and precise” information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999‑I). In cases of defamatory factual statements, the Court has found journalists to be under an obligation to verify such statements unless special grounds justify dispensing them of that obligation (see Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 89, 1 March 2007). The question of whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the news outlet can reasonably regard its sources as reliable with respect to the allegations (ibid.). In the context of interviews, the Court has held that the punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to the discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). In that context, the Court has furthermore found that it is not necessarily incumbent upon a journalist to ascertain the truth of disputed allegations, provided that the journalist acts in good faith and with sufficient diligence (see Erla Hlynsdόttir v. Iceland, no. 43380/10, § 72, 10 July 2012). The Court has also held that a general requirement for journalists to systemically or formally distance themselves from the content of a quotation that might damage others’ reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas (see Thoma v. Luxembourg, no. 38432/97, § 64, ECHR 2001‑III).
28. The choice of the means to secure compliance with Article 8 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the Contracting States’ margin of appreciation. In this connection, there are different ways of ensuring “respect for private life”, and the nature of the State’s obligation will depend on the particular aspect of private life that is in issue (see, inter alia, Petrie, cited above, § 41). Moreover, where the balancing exercise between the rights under Articles 8 and 10 of the Convention has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Axel Springer AG [GC], cited above, § 88; and Von Hannover (no. 2) [GC], cited above, § 107).
29. In order to assess the justification for an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the requirement to prove the truth of value judgments is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of statements as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 76, ECHR 2004‑XI, and Egill Einarsson v. Iceland, no. 24703/15, § 40, 7 November 2017).
30. Turning to the facts of this case, the Court finds that the matter at hand reaches the requisite level of seriousness to come within the scope of the notion of “private life” under Article 8 § 1, considering that the applicant’s reputation was affected by the news reports of suspicions of his involvement in serious criminal offences without his apparently having been indicted or convicted of the offences (see Sidabras and Dziautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004-VIII).
31. As stated above, the Supreme Court held that the article in general had amounted to reporting on the reporting of other news outlets, and that each of the impugned statements had thus constituted statements of fact. The one exception to this was the ninth statement, in which it was indicated that the applicant was “said to be very dangerous”. The Supreme Court considered that to amount to a value judgment. The Court considers that this assessment of the impugned statements is neither arbitrary nor manifestly unreasonable and sees no reason to substitute its own assessment for the domestic courts’ assessment in this respect.
32. Concerning the impugned statements which the Supreme Court found to amount to statements of fact, it found that H. had sufficiently and correctly cited its sources. As they had relayed the fact that other news outlets had published reports on the applicant’s alleged behaviour, the statements of fact had thus been factually correct and the journalist in question had sufficiently borne the burden of proof for the statements. As it had not been shown that H. had acted in bad faith or that it had had a reason to doubt that these news outlets had not honoured the basic democratic principles of journalism, H.’s reporting in this respect could not be criticised.
33. Concerning the part of the ninth statement which the Supreme Court found to amount to a value judgment, the domestic courts considered it to be sufficiently supported by the reports from the cited sources, and therefore not excessive.
34. The Court, like the Supreme Court, sees no reason to doubt that H. acted in good faith, and notes that it repeatedly cited its sources, and included in its report a hyperlink to the source article stemming from the National Broadcasting Service, which was available online. The Court notes that both the District Court and the Supreme Court made a thorough assessment of each of the impugned statements, taking into account the competing rights at stake and the relevant criteria as set forth in the Court’s case-law, including the subject of the report, its contribution to a debate of general interest, the method of obtaining the information published and its veracity, and the content and form of the report. In coming to their conclusion, the domestic courts referred, inter alia, to the substance of the report undoubtedly concerning an issue of relevance to public discussion, that the applicant had already been named and his alleged conduct reported on in other news reports from multiple outlets, that H. had had no reason to doubt that the sources which it cited and quoted had not complied with their ordinary press obligations and that the statements published by H. had, considering how they were phrased and their sources cited, been factually correct. They furthermore noted that in relaying the reports of other outlets, H. had not taken a stand on the truthfulness of those reports (see, for example, Thoma, cited above, § 64, and Björk Eiðsdóttir v. Iceland, no. 46443/09, § 79, 10 July 2012). The domestic courts’ findings in this regard having been reasonable, the Court sees no compelling reasons to substitute its own view for that of the domestic courts.
35. The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts struck a fair balance, within their margin of appreciation, between the journalist’s freedom of expression under Article 10 and the applicant’s right to have his reputation respected under Article 8, taking into account the criteria set out in the Court’s case-law. This complaint is therefore manifestly ill-founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 17 December 2020.
Olga ChernishovaGeorgios A. Serghides
Deputy RegistrarPresident
Full & Egal Universal Law Academy