AS TO THE ADMISSIBILITY OF
Application No. 34409/97
by Helen WELLTON
against Sweden
The European Commission of Human Rights (Second Chamber) sitting
in private on 14 January 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the 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 26 September 1996
by Helen WELLTON against Sweden and registered on 9 January 1997 under
file No. 34409/97;
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 applicant is a Swedish national born in 1961. Before the
Commission she is represented by Mr Dan-Louis Schneider, a lawyer
practising in Stockholm.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
a. The particular circumstances of the case
In 1990 the applicant and her husband, C.W.P., founded a company
specialised in the retail of portable computers. From the outset, the
company's public relations policy included the launching of repeated
and extensive advertising campaigns. The applicant, who had previously
worked as a model, featured in all of the company's advertisements.
On 14 March 1994 there appeared in the Swedish daily Aftonbladet
an article criticising the conditions under which the company's staff
had to work and also alleging breaches of labour law. The article,
accompanied by photographs of the applicant, included the following
captions on the front page and page 9 of the paper.
(Translation)
The front page:
"Computer baroness breaks the law."
Page 9:
"'You will be sacked if you enter the ware-house.' Computer
baroness rules her company with an iron hand."
The applicant brought a private prosecution for aggravated libel
(grovt förtal), and in the alternative for libel (förtal), against the
editor-in-chief of the newspaper in the District Court (tingsrätten)
of Stockholm. In so doing, she invoked Chapter 7, Section 4, subsection
14 of the Freedom of the Press Act (tryckfrihetsförordningen, a law
forming part of the Swedish Constitution) and Chapter 5, Sections 1 and
2 of the Penal Code (brottsbalken). In the same proceedings she sued
both the editor-in-chief and the newspaper for damages. She contended
that the front-page caption - "computer baroness breaks the law" - was
calculated to cast doubt on her honour and to expose her to contempt.
Considering the wide distribution of the newspaper she considered the
libel to be of an aggravated character.
The District Court, sitting with three judges and a jury of nine,
held a hearing in the case. The editor-in-chief denied the charges. The
court also heard the applicant and several witnesses, among them the
journalist who had written the article and the applicant's husband. At
the end of the hearing two questions were put to the jury by the court,
namely whether the front-page caption constituted aggravated libel or,
if the jury should give a negative answer to that question, whether it
constituted libel.
By judgment of 2 May 1995, the court dismissed the charges made
by the applicant and her claims for damages. The court noted at the
outset that the jury had replied in the negative to the first question
put to it concerning the alleged unlawfulness of the impugned caption
and in the affirmative to the second question, thus finding the caption
to constitute libel. However, acting in accordance with the provisions
of the Freedom of the Press Act, the court went on to examine the case
independently. In so doing, the court found the caption to be libellous
per se but considered that there had existed satisfactory reasons for
believing that the information was correct. As regards the question
whether it had been permissible to disseminate the information, the
court stated the following:
(Translation)
"It has transpired that both [C.W.P.] and [the applicant]
herself have consciously and also successfully pursued the
policy that [the applicant] should be included in the
company's public relations activities to such an extent and
in such a way that [the applicant] and [the company] could
be identified with each other. It is widely known that this
strategy has been successful. [The applicant] is very
closely connected with [the company] and is nowadays, as
indeed intended, considered to be a symbol for its
activities. The District Court therefore finds ... that it
was permissible for [the newspaper], drawing on the ideas
of the general public, to personify [the company] and, as
intended by the repeated public relations activities, to
refer to [the applicant] as a "computer baroness" when
criticising the company's personnel policy and its relation
to labour law."
The District Court concluded that if a natural person - by virtue
of his or her public appearances on behalf of a company - could be said
to represent the company, criticism against the company and its
activities could not be regarded as an attack on that person, not even
if emphasis were placed on that person as a representative of the
company. - Furthermore, in view of the conclusions reached on the
merits, the court ordered the applicant to pay 32,475 Swedish crowns
in costs.
The applicant appealed to the Svea Court of Appeal (Svea
hovrätt), which held a hearing in the case. Again, the applicant and
the editor-in-chief were heard. All witnesses were re-examined.
By judgment of 7 February 1996, the Court of Appeal upheld the
whole of the District Court's judgment. Subscribing essentially to the
reasons given by the lower court, the appellate court found that the
impugned caption, although libellous in itself, could not be considered
unlawful in the circumstances of the case. In particular, the court
noted that it was a societal interest that abuses of labour law be
revealed. For this reason, so the court stated, it had been permissible
not only to report on the alleged abuses but also - taking into account
the extensive advertising campaigns - to connect them with the
applicant. - The applicant was ordered to pay another 58,180 Swedish
crowns in costs.
Leave to appeal against the Court of Appeal's judgment was
refused by the Supreme Court (Högsta domstolen) on 1 April 1996.
b. Relevant domestic law
Chapter 7, Section 4, subsection 14 of the Freedom of the Press
Act provides the following:
(Translation)
"Taking into account the purpose of a system of general
freedom of the press, as stated in Chapter 1, the following
offences shall be considered as offences under the Freedom
of the Press Act [tryckfrihetsbrott], if they are committed
by means of the printed word and are punishable under the
law:
...
14. libel, by which someone accuses another person of being
a criminal or of leading a reprehensible life or otherwise
disseminates information intended to expose this person to
other people's contempt, ... but not if, in the
circumstances of the case, it was permissible to
disseminate the information concerned and he is able to
establish that the information was true or that it was
based on satisfactory reasons. ..."
Libel is a punishable offence under Chapter 5, Section 1 of the
Penal Code.
Chapter 12 of the Freedom of the Press Act contains special
provisions governing judicial proceedings instituted to establish
criminal liability for prohibited statements in print. The District
Court sits with three judges and, in proceedings brought under the Act,
also with a jury of nine members to examine whether a criminal offence
has been committed, unless the parties on both sides declare their
willingness to have the issue determined by the court without a jury
(Section 2). In any event, matters such as evidence, sentencing,
damages and legal costs are dealt with by the judges alone. If a jury
has given a negative answer to the question whether an offence has been
committed, the defendant must be acquitted. If the reply is in the
affirmative the issue is to be examined also by the judges. Should they
disagree with the jury, they may acquit the defendant or apply a penal
provision imposing a less severe penalty than that applied by the jury
(ibid.). A judgment by the District Court may be appealed against to
the Court of Appeal, whose jurisdiction, like that of the District
Court, is limited by the terms of the jury's verdict (ibid.).
COMPLAINTS
1. Under Article 6 of the Convention the applicant complains that
she was accused of being a criminal and that she was denied a fair
hearing for the purpose of protecting her reputation.
2. Invoking Article 8 of the Convention, the applicant further
complains that, by acquitting the editor-in-chief, the Swedish courts
violated her right to respect for private life.
The applicant also alleges a breach of Article 10 of the
Convention in that the Swedish legislation, allegedly lacking any
effective restrictions to the freedom of expression as regards the
printed word, provides insufficient protection against treatment of the
kind to which she has been subjected.
3. Finally, the applicant contends that the courts failed to make
a distinction between her - as a model appearing in the company's
advertisements - and the company itself and that the courts were
therefore more concerned with the company's activities than the alleged
unlawfulness of the allegations against her. For this reason, so she
claims, she has been discriminated against as compared with contractors
without such affiliations. In this respect she invokes Article 14 of
the Convention.
THE LAW
1. Under Article 6 (Art. 6) of the Convention the applicant
complains that she was accused of being a criminal and that she was
denied a fair hearing for the purpose of protecting her reputation.
The Commission has considered this complaint under paragraph 1
of Article 6 (Art. 6-1), which, so far as relevant, reads as follows:
"In the determination of his civil rights and obligations
..., everyone is entitled to a fair and public hearing ...
by [a] ... tribunal ..."
The Commission first finds that the proceedings in question
related to the applicant's "civil rights" within the meaning of Article
6 para. 1 (Art. 6-1) of the Convention, which is therefore applicable
to the present complaint (see, e.g., Eur. Court H.R., Helmers v. Sweden
judgment of 29 October 1991, Series A no. 212-A, p. 14, para. 29).
The Commission has not, however, found any substantiated
allegations in the applicant's submissions which could lead it to
conclude that the proceedings were unfair and that the District Court
and the Court of Appeal reached their judgments unfairly. There is thus
no appearance of a violation of Article 6 (Art. 6) of the Convention.
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. Invoking Article 8 (Art. 8) of the Convention, the applicant
further complains that, by acquitting the editor-in-chief, the Swedish
courts violated her right to respect for private life.
The applicant also alleges a breach of Article 10 (Art. 10) of
the Convention in that the Swedish legislation, allegedly lacking any
effective restrictions to the freedom of expression as regards the
printed word, provides insufficient protection against treatment of the
kind to which she has been subjected.
The Commission observes at the outset that the objective of
Article 10 (Art. 10) is to protect the freedom of expression and that -
consequently - this provision cannot be invoked by the applicant in
the present case. Finding, however, that the complaint lodged under
Article 10 (Art. 10) essentially pertains to the right to respect for
private life, the Commission will examine also that complaint under
Article 8 (Art. 8), which provides the following:
"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."
The Commission recalls that, in the instant case, the Swedish
courts were called upon to strike a balance between two opposing
interests: the right to respect for private life and the right to
freedom of expression. In so doing, both the District Court and the
Court of Appeal found that the impugned caption was libellous in itself
but that, in the circumstances of the case, it had been permissible to
disseminate the information and that the information had been based on
satisfactory reasons. In particular, the Court of Appeal held that
abuses of labour law was a subject of considerable importance in
society and that - considering the extensive advertising campaigns -
it had been permissible to connect these abuses with the applicant.
There is nothing to show that the courts acted arbitrarily when thus
evaluating the facts of the case. Nor are there any elements indicating
that that they failed to strike a fair balance between the individual
interests of the applicant and the general interests of the community.
The Commission therefore cannot find that the judgments as such
disclose any lack of respect for the applicant's private life.
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.
3. Finally, the applicant contends that the courts failed to make
a distinction between her - as a model appearing in the company's
advertisements - and the company itself and that the courts were
therefore more concerned with the company's activities than the alleged
unlawfulness of the allegations against her. For this reason, so she
claims, she has been discriminated against as compared with contractors
without such affiliations. In this respect, she invokes Article 14
(Art. 14) of the Convention, which reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
The Commission, having examined the present complaint under
Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the
Convention, finds that the applicant's submissions fail to substantiate
this complaint.
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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy