Communicated on 20 November 2015
FIRST SECTION
Application no. 44081/13
Reynir TRAUSTASON and Others
against Iceland
lodged on 6 June 2013
STATEMENT OF FACTS
The applicants are Mr Reynir Traustason (the first applicant), Mr Jón Trausti Reynisson (the second applicant) and Mr Ingi Freyr Vilhjálmsson (the third applicant). They are Icelandic nationals. The first applicant was born in 1953 and lives in Mosfellsbær, the second applicant was born in 1980 and lives in Reykjavík, and the third applicant was born in 1980 and lives in Stockholm. They are represented before the Court by Mr Einar Gautur Steingrímsson, a lawyer practising in Reykjavík.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the material time, the first applicant was on the editorial board of the newspaper DV, the second applicant was a journalist and on the editorial board of DV and the third applicant was a journalist for DV.
On 30 September 2010 an Icelandic private limited company, (hereafter “the company”), was declared bankrupt.
In October 2010 the liquidator of the bankruptcy estate hired an accountancy firm to investigate the company’s accounts.
On 31 January 2011 the accountancy firm finalised a report indicating a suspicion of criminal misconduct by the board members. The chairman of the board, A, who was also one of the owners of the company, was an assistant professor at the University of Iceland at the time.
The liquidator reported the suspected criminal misconduct to the police. A holding company and a bank also reported the company and A to the police.
On 14 March 2011 DV published a picture of A on its front page under the headline “Black report on [the company]: Police investigate Assistant Professor”. An article on the matter was printed on pages 2 and 3. The third applicant was identified as its author. The headline of the article read “Assistant professor entangled in police investigation” and another picture of A appeared beside the headline. The article was based on information from the accountancy firm’s report. It is not known how the applicants knew about the report and its contents.
On 28 April 2011 A lodged defamation proceedings against the applicants and DV before the Reykjavík District Court and requested that the statements published by DV “Police investigate Assistant Professor” and “Assistant Professor entangled in police investigation” be declared null and void.
The applicants and A were heard, and an e-mail of 16 March 2011 from a police prosecutor to A’s lawyer was submitted as evidence.
By a judgment of 5 March 2012 the District Court found that both disputed statements had been defamatory and ordered the applicants to pay 200,000 Icelandic Krónur (ISK) to A in compensation for non-pecuniary damage, plus interest, as well as ISK 200,000 for the cost of publishing the judgment. The statements were declared null and void.
The judgment contained the following reasons:
“... According to Article 73(1) of the Constitution everybody has the right to freedom of opinion and belief. However, Article 73(3) of the Constitution allows certain restrictions on the freedom of expression. It states that 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. In Chapter XXV of the Penal Code, freedom of expression is restricted in the interest of the rights and reputation of others. When deciding the limits of freedom of expression, the possibility of a public debate has to be guaranteed.
[The applicants] claim that the statements are true and refer to the principle that they cannot be held liable for true statements. It is undisputed that, before the newspaper coverage, [the police] had been informed by the liquidator of a reasonable suspicion of criminal acts by the company’s board members, of which A was one. It is also clear that the information given by the liquidator was based on [the accountancy firm’s] report of 31 January 2011. An e-mail of 16 March 2011 from [the prosecutor] to [A’s] lawyer stated that the liquidator’s report was being “examined” [“til skoðunar”]. Furthermore, it was stated that two other entities [had reported, inter alia, A] to the police and that those reports “were also being considered” [litið til framangreindra kæra]. However, it is stated that no formal decision has been taken about a police investigation nor possible criminal acts defined.
[The applicants] base their defence on the fact that nothing in their statements, which [A] wants declared null and void, indicates that a formal decision had been taken to start [a police] investigation and that the wording of the statements should not be interpreted more widely than its general meaning indicates. Here it has to be taken into account that in general the media are required to base coverage on thorough research of the facts. Taking this into account, and having regard to [the absence of a formal decision by the police to investigate] [the company] and its board members, including [A], the court cannot accept [the applicant’s] arguments. No police investigation had been instigated against [A], thus the statements “Police investigate Assistant Professor” and “Assistant professor entangled in police investigation” were factually wrong, but both statements did in fact have the same meaning. It was not unreasonably difficult to verify whether such an investigation had in fact been opened. The wording of the statements was of such a nature as to make the reader believe that [A] was a suspect in a police investigation because of his criminal and punishable acts. This damaged [A’s] reputation. Therefore, the court has to agree with [A] that [the applicants] violated Article 235 of the Penal Code No 19/1940 (Almenn Hegningarlög) by publishing the aforementioned statements. In the light of the aforesaid, and with reference to Article 241(1) of the Penal Code, [A’s] request to declare the statements null and void is granted. However, there is no reason to impose punishment; therefore [A’s] request that [the applicants] be punished is rejected.”
On 8 May 2012 the applicants appealed against the District Court’s judgment to the Supreme Court.
By judgment of 6 December 2012 the Supreme Court confirmed the District Court’s judgment.
As to the reasoning, the Supreme Court stated:
“... The aforementioned e-mail from [the prosecutor] can only be understood as meaning that no investigation had been instigated on account of the three reports [to the police] which are referred to in the e-mail. There is nothing to indicate that such an investigation was initiated later and it will not be held against [A] that he did not provide confirmation of that during the proceedings as requested by [the applicants].
With these comments, [and] with reference to the District Court’s reasoning, the Supreme Court confirms the District Court’s decision on declaring the statements null and void and confirms the publication of the judgment in the next issue of DV and the next online edition of DV after the delivery of this judgment. The annulled statements were wrong and defamatory for [A]. When examining the coverage and the publication of pictures of [the company] and its representatives in the printed issue of DV and in the online edition of [DV], [A’s] reputation was attacked, at a time when there were no grounds for it.”
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”, set 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) read:
“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 contents of publications, contained 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.”
COMPLAINT
The applicants complain that the judgments of the domestic courts entailed an interference with their 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 in its judgment of 6 December 2012, and the District Court in its judgment of 5 March 2012, 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?
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?
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