TOLLEFSEN v. NORWAY



                   AS TO THE ADMISSIBILITY OF

                      Application No. 16269/90

                      by B.T.

                      against Norway

      The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

                 MM.  S. TRECHSEL, President of the Second Chamber

                      G. JÖRUNDSSON

                      A. WEITZEL

                      H.G. SCHERMERS

                      H. DANELIUS

                 Mrs. G.H. THUNE

                 MM.  F. MARTINEZ

                      L. LOUCAIDES

                      J.-C. GEUS

                      A.V. ALMEIDA RIBEIRO

                 Mr.  K. ROGGE, Secretary to the Second Chamber

      Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

      Having regard to the application introduced on 24 May 1989 by

B.T. against Norway and registered on 8 March 1990 under file No.

16269/90;

      Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

      Having deliberated;

      Decides as follows:

THE FACTS

      The facts of the case, as submitted by the applicant, may be

summarised as follows.

      The applicant is a Norwegian citizen, born in 1954. He is a

journalist and resides at K., Norway. Before the Commission he is

represented by Mr. Kevin Boyle, Colchester, United Kingdom.

      From 1983 until 1988 the applicant was a programme secretary at

Tromsø Radio, a regional unit of the Norwegian Broadcasting Corporation

- NRK.

      In 1985 the applicant was looking for a house to buy. He came in

touch with a lawyer in Tromsø, S, who was selling a house which

belonged to his wife. In connection with his law office S also had a

real estate agency, named Eiendomsservice A/S.

      In the name of the latter S had advertised the house for sale in

a newspaper in Tromsø. The applicant was interested, made an offer and

had an appointment with S in his office, discussing a possible sale.

Four days later the applicant had a telephone conversation with S on

the matter. This telephone conversation was tape-recorded by the

applicant without S's knowledge.

      At that moment the applicant intended to make a radio programme

on what he had experienced during the meeting with S. His plans for the

radio programme were presented to his superiors, who accepted them. The

programme was prepared and edited by the applicant and presented by him

on 25 October 1985 on Tromsø Radio. It concerned the circumstances

surrounding the applicant's negotiations with S in respect of the

possible sale of the house in question. S's name was not mentioned, but

reference was made to "a lawyer in town, himself a real-estate agent".

The main coverage of the subject was an edited version of the telephone

conversation with S in the way that a representative of NRK acted as

S and read out his statements. As an introduction it was mentioned that

NRK's broadcaster, the applicant, had been asked to pay 250,000 NOK

under the table on approaching a lawyer to buy a house.

      An excerpt of the story was broadcast on the national network on

Sunday 27 October 1985. In the Tromsø Radio news broadcast on Monday

28 October 1985 the story was referred to again and it was stated,

among other things, that the lawyer concerned had reported NRK to the

police. On 2 November 1985 the applicant was furthermore quoted in the

local newspaper in an article concerning the case.

      The lawyer S found several of the statements in the NRK

programmes in October 1985 and in the newspaper article defamatory and

reported the matter to the police. On 29 November 1985, however, the

police decided not to take any further action. Subsequently, on

21 March 1986, S asked for a writ to be issued in a private criminal

case before Tromsø City Court (Tromsø Byrett) against the applicant,

the applicant's superiors, R and G, and NRK. He demanded that the

persons sued be punished under Section 247 of the Penal Code and

applied for damages, rehabilitation, and the following statements to

be declared null and void:

(translation)

      "1. A lawyer in Tromsø demands 250,000 NOK under the table

      for a detached house. The lawyer says that it is quite

      common for sales of houses to be arranged in this manner.

      2. A buyer says to NRK that the lawyer for one house

      demanded 1/4 million NOK under the table.

      3. The applicant who is an employee of this radio station

      has experience of his own. He was faced with a demand for

      250,000 NOK under the table when he approached a lawyer in

      town to buy himself a house.

      4. The purchase of the house has come to nothing, but our

      colleague has secured for himself documentary evidence

      showing that the lawyer, on behalf of the vendor, wants

      part of the purchase sum to be paid unofficially.

      5. Then suddenly it is no longer an offer but a demand.

      Either I agree to pay under the table, or the sale will

      come to nothing.

      6. The buyer had been offered a house for 750,000 NOK and

      the lawyer, acting in his capacity as a real-estate agent,

      demanded that 1/3 of the sum, 250,000 NOK, be paid under

      the table.

      7. From the story it was evident that the lawyer wanted

      250,000 NOK not to be stated in the title deed, thus money

      under the table.

      8. I came across a lawyer who put pressure on me to pay a

      very large sum under the table. The story I have told about

      this on the radio is true all the way."

      The statements 1 to 5 derived from the features in the broadcast

of 25 October 1985. The statements 6 and 7 related to the news

broadcast from Tromsø Radio of 28 October 1985, and statement 8 to the

newspaper interview with the applicant of 2 November 1985.

      The case was heard in the City Court from 17 to 20 November 1987.

The parties, present and represented by counsel, had the opportunity

to submit what in their opinion would be of relevance to the case.

Furthermore, the Court heard 10 witnesses and had at its disposal

certain documentary evidence, including the tape-recorded conversation

between the applicant and S. In its 87-page judgment of 22 December

1987 the City Court noted that the parties did not agree on the factual

circumstances surrounding the applicant's negotiations with S

concerning the sale of the house. On the basis of the available

evidence, however, it found it established that the facts were not as

described by the applicant in the statements 1-8 set out above for

which reason the Court concluded that the statements were incorrect.

Secondly the Court considered whether the statements contained

defamatory remarks contrary to Section 247 of the Penal Code. It found

that the statements expressed allegations about actual facts which in

the Court's opinion were very defamatory, injuring the good name and

reputation of S. In particular the Court found it defamatory when S was

wrongfully accused of tax evasion, or alternatively of being a party

to it. The Court concluded under this head that all 8 statements were

unlawful (rettsstridige) from an objective point of view.

      Thirdly the Court considered whether the applicant had had the

necessary intent required for convicting him of violating Section 247

of the Penal Code, a question which the Court, on the basis of the

established facts, answered in the affirmative.

      Finally, the Court considered whether the applicant nevertheless

could avoid punishment, with reference to Section 249, no. 3, of the

Penal Code, having acted with due respect for his own interests and

those of others. In this respect the Court found that it would be in

the public interest if the applicant intended to disclose and criticise

illegal transactions of a lawyer in regard to a house sale. The Court

found, however, that the applicant had not acted with sufficient

diligence and defamed in the mass media a lawyer who was particularly

dependent on the trust of his clients.

      For these reasons the applicant was found guilty of defamation

in violation of Section 247 of the Penal Code. He was sentenced to pay

a fine of 15,000 NOK, 25,OOO NOK in damages to the applicant and the

costs. Furthermore, the Court ruled that the above statements 1-8 be

declared null and void.

      The applicant appealed against the judgment to the Supreme Court

(Høyesterett) which upheld the judgment on 22 December 1988.

COMPLAINTS

      The applicant complains of an unjustified interference with his

right to freedom of expression as a journalist. Although he accepts

that the defamation offences in the Norwegian Penal Code pursue a

legitimate aim, he maintains that features of the domestic law

governing defamation excessively impede freedom of expression and the

freedom of the press to seek and impart information on issues of public

concern. These features are the use of penal law, the onus of proof in

regard to defamation charges, the standard of proof with respect to the

defence and the proof of fault or lack of due diligence. The applicant

invokes in this respect Article 10 of the Convention.

      The applicant also complains of the fact that, being faced with

a criminal charge, he was required to shoulder the burden of proof of

the truth of the statements disputed by the private prosecutor. He had

to prove the truth beyond a reasonable doubt in order to avoid

conviction. The applicant invokes in this respect Article 6 paras. 1

and 2 of the Convention.

THE LAW

1.    The applicant invokes Article 10 (Art. 10) of the Convention

complaining that this provision has been violated due to his conviction

for defamation of character by the Norwegian courts. Article 10

(Art. 10) of the Convention 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 and regardless of frontiers.  This Article

      shall not prevent States from requiring the licensing of

      broadcasting, television or cinema enterprises.

      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."

      The Commission finds that there was in the present case an

interference by a public authority with the exercise of the applicant's

freedom of expression. This interference resulted from the applicant's

conviction for defamation by the Tromsø City Court on 22 December 1987,

which was upheld by the Supreme Court on 22 December 1988. Such

interference contravenes the Convention if it does not satisfy the

requirements of the second paragraph of Article 10 (Art. 10). The

Commission must accordingly examine whether the interference was

"prescribed by law", had an aim that was legitimate and was "necessary

in a democratic society" for the aforesaid aim (cf. for example Eur.

Court H.R., Lingens judgment of 8 July 1986, Series A no. 103, p. 24,

para. 35).

      As regards the two first elements the Commission finds that the

applicant's conviction was prescribed by law in that it was based on

Section 247 of the Norwegian Penal Code. The restriction moreover

pursued a legitimate aim covered by Article 10 para. 2 (Art. 10-2) of

the Convention, namely the protection of the reputation of others. What

remains to be examined is accordingly the question whether the

restriction complained of was "necessary in a democratice society" for

achieving this aim.

      In this respect the Commission recalls that according to its

case-law and that of the European Court of Human Rights the Contracting

States have a certain margin of appreciation in assessing whether and

to what extent an interference is necessary, but this margin goes hand

in hand with European supervision covering both the legislation and the

decisions applying it. The Commission therefore has jurisdiction to

ascertain whether, having regard to the facts and circumstances of the

case, a "restriction" or "penalty" is compatible with freedom of

expression (cf. Eur. Court H.R., Barfod judgment of 22 February 1989,

Series A no. 149, p. 12, para. 28).

      In exercising its supervisory function the Commission must look

at the case as a whole and determine whether the interference was

proportionate to the legitimate aim pursued and whether the reasons

adduced by the Norwegian courts were relevant and sufficient.

      The Commission recalls that the statements broadcast by the

applicant represented the facts of the case as seen from his point of

view. However, the facts were disputed by the lawyer S and on the basis

of the evidence produced in court the Tromsø City Court found it

established that the applicant's statements were untrue. In this

respect the Commission finds it necessary to distinguish between facts

and value judgments. The existence of facts can be demonstrated and the

Commission has not found that the City Court, in establishing the

facts, drew grossly unfair or arbitrary conclusions from the available

evidence. Thus the Commission notes that the applicant was convicted

for wrongfully accusing a lawyer inter alia of tax evasion. The

Commission has no difficulty in finding that such an interference with

freedom of expression could be regarded as necessary in a democratic

society for the protection of the reputation of others.

      It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2.    The applicant also complains under Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention that due to the fact that he carried

the burden of proof as to the truth of the statements in question, he

was deprived of the presumption of innocence.

      Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention read

as far as relevant:

      "1. In the determination of ... any criminal charge against

      him, everyone is entitled to a fair ... hearing ...

      2. Everyone charged with a criminal offence shall be

      presumed innocent until proved guilty according to law. "

      The Commission recalls that in Norway the burden of proof in

defamation proceedings lies, as in other Convention States, with the

person who makes the defamatory statements. In this way the law intends

to compel the author of such statements to make sure in advance that

what is being said can also be proven as true, i.e. it imposes a

particular standard of care on these persons. The reputation of the

victim is protected in this way not only against untrue statements but

also against allegations the truth of which cannot be proven (cf. No.

8803/79, Dec. 11.12.81, D.R. 26 p. 171).

      The Commission does not find that this system runs counter to the

Convention as such. It is true that Article 6 para. 2 (Art. 6-2)

requires States to confine presumptions of fact and law within

reasonable limits which take into account the importance of what is at

stake and maintain the rights of the defence (cf. Eur. Court H.R.,

Salabiaku judgment of 7 October 1988, Series A no. 141-A, pp. 15-18,

paras. 28-30).

      However, in the present case the Commission recalls that the

applicant was provided under domestic legislation with the possibility

of exculpating himself and it does not consider that the conditions

required for doing so imposed an insurmountable presumption of guilt.

Furthermore, the Commission finds that the Norwegian courts enjoyed a

genuine freedom of assessment on the basis of the evidence adduced.

They were not required to apply the relevant legislation in a manner

incompatible with the presumption of innocence and indeed did not

resort automatically to a presumption of guilt (cf. also No. 16641/90,

Dec. 10.12.91, not yet published).

      In these circumstances the Commission finds no appearance of a

violation of Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the

Convention, and it follows that this part of the application is also

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber       President of the Second Chamber

        (K. ROGGE)                           (S. TRECHSEL)

 

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