SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42435/02
by James Anthony WHITE
against Sweden
The European Court of Human Rights (Second Section), sitting on 11 January 2005 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrR. Türmen,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 29 November 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Anthony White, is a United Kingdom national who lives in Beira, Mozambique. He is represented before the Court by Mr E. Kalman, a lawyer practising in Stockholm.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 29 and 30 September and 1 October 1996 the two main evening papers in Sweden, Expressen and Aftonbladet, published a series of articles in which the applicant was pointed out as the murderer of Olof Palme, the Swedish Prime Minister assassinated in 1986.
On 23 September 1998 the applicant brought a private prosecution against the newspapers through their legally responsible editors (ansvariga utgivare). He claimed that the editors were responsible for gross defamation, alternatively defamation of the normal degree, under chapter 7, section 4, subsection 14 of the Freedom of the Press Act (Tryckfrihets-förordningen) and chapter 5, section 2 – or, in the alternative, section 1 – of the Penal Code (Brottsbalken). He also joined an action for damages to the private prosecution and sought compensation for physical suffering and pecuniary damage.
The District Court (tingsrätten) of Stockholm held an oral preparation of the case on 1 February 1999 and an oral hearing on 27 and 28 January and 1-3 February 2000. It heard several witnesses. In accordance with the normal procedure in cases concerning criminal liability under the Freedom of the Press Act, the court sat with three professional judges and a jury of nine members.
The District Court put to the jury 66 questions relating to the articles published in Expressen and 76 questions relating to the articles published in Aftonbladet. Each question referred to one or more statements or pictures published in the various articles and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of the normal degree. The jury answered all but six questions in the negative. In accordance with the applicable rules, the jury's finding of no guilt was final. As regards the remaining six questions, however, the jury found that certain published statements or pictures amounted to defamation of the normal degree. The court then had to make a re-assessment of liability. The statements or pictures were the following:
1. The heading on the front page stating “He is pointed out as PALME'S MURDERER” [“Han pekas ut som PALMES MÖRDARE”] together with a picture of the applicant. [Expressen, 30 September 1996]
2. The text on page 6 reporting a statement made by an unnamed source within the South African intelligence service: “He is the type of person that you do not cheat unpunished. He kills without a second's hesitation.” [“Han är den typen av person som man inte lurar ostraffat. Han dödar utan en sekunds tvekan.”] [Aftonbladet, 29 September 1996]
3. The text on page 6: “In addition to Long reach, Williamson and White had several companies together, some with links to the Mafia. Among others the GMR Group in the Seychelles which was used for laundering money from illegal activities. When Long reach was wound up, White is supposed to have started a sawmill in Beira in Mozambique. A perfect cover for other activities. Weapons and drugs are two products that have been mentioned.” [“Vid sidan av Long reach hade Williamson och White flera andra företag ihop, en del med kopplingar till maffian. Bland annat GMR Group på Seychellerna som användes för att tvätta pengar från illegal verksamhet. När Long reach avvecklades ska White ha startat ett sågverk i Beira i Mocambique. En perfekt täckmantel för annan verksamhet. Vapen och droger är två produkter som nämnts.”] [Aftonbladet, 29 September 1996]
4. The text on page 6: “White has been dealing with most things. – He is one of southern Africa's biggest poachers, tells a source. It is to a large degree his fault that the elephants in Mozambique are all but extinct. Together with Williamson, Anthony White appropriated the ivory.” [“White har sysslat med det mesta. – Han är en av södra Afrikas största tjuvskyttar, berättar en källa. Det är till stor del hans skuld att elefanterna i Mocambique är så gott som utrotade. Anthony White tog tillsammans med Williamson hand om elfenbenen.”] [Aftonbladet, 29 September 1996]
5. The subheading on page 6 “... but earns more on smuggling and poaching” [“... men tjänar mest på smuggling och tjuvjakt”] together with the ensuing text stating “But according to several statements, the main part of his income derives from smuggling and poaching.” [“Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt.”] [Aftonbladet, 30 September 1996]
6. The caption on page 7 “TODAY – SMUGGLER IN MOZAMBIQUE” [“I DAG – SMUGGLARE I MOCAMBIQUE”] under a picture of the applicant. [Aftonbladet, 30 September 1996]
By a judgment of 24 February 2000 the District Court acquitted the editors in all respects and rejected the applicant's claims for damages. It found that all six passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle. However, given the great general interest in the statements in Sweden and the fact that the applicant had no social relations in the country and thus could not be expected to be harmed by the publication, the court found that it had been justifiable to publish the relevant statements and pictures. It further considered that the newspapers had had a reasonable basis for the published information. In the latter respect, the court had regard to how and from whom the information had been obtained and to the fact that, due to the nature of the information in question and the constraints of a fast news-service, the possibility of checking the veracity of the statements had been limited.
The applicant appealed to the Svea Court of Appeal (Svea hovrätt). The appellate court held an oral hearing and heard essentially the same witnesses as the District Court.
On 21 February 2002 the Court of Appeal upheld the District Court's judgment. It gave the following reasoning:
“The Court of Appeal finds, like the District Court, that the relevant information in Expressen and Aftonbladet depicts Anthony White as a criminal and as having a reprehensible lifestyle. The information has been liable to expose him to the contempt of others and, consequently, as such constitutes defamation.
The question then is whether there are grounds for excluding liability. Pursuant to chapter 7, section 4, subsection 14 of the Freedom of the Press Act and chapter 5, section 1, subsection 2 of the Penal Code, liability for defamation by means of printed matter is excluded if two conditions are met: 1) it would be justifiable to communicate the information, and 2) the information should be correct or the communicator should have had a reasonable basis for the assertion.
If the information is correct it may as a rule be communicated even if it is deprecatory, if this is justifiable with reference to the public news interest. However, there is no general right always to speak the truth if the statements are offensive. A balance has to be struck between the protection against offensive statements and the demands of freedom of speech. In certain situations the interest of protecting someone against offensive statements has to yield to the public interest.
Expressen has claimed that, on account of the public interest – the murder of the country's prime minister –, it was justifiable to name and show a photograph of Anthony White in the newspaper. Aftonbladet, for its part, has asserted that, in the circumstances, it was justifiable to describe Anthony White's personality and conduct.
The question of who killed Olof Palme attracted at the relevant time and still attracts considerable public interest. As regards the question of whether in the circumstances it was justifiable to communicate the information, the Court of Appeal agrees with the District Court's assessment that it was obviously legitimate to write about the so-called “South Africa trail” and to present information in this regard. However, the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large-scale serious criminality.
[The responsible editors] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who Anthony White was and of which crimes he was guilty. It emerges from the information that has come to hand in the case that, within certain groups in southern Africa and Europe, it was known that Anthony White had engaged in the alleged activities. It has also been shown that books have been published in which Anthony White has been named and his service as an elite soldier in the army unit Selous Scouts, which has a dubious reputation, has been described. The information in the case reveals that Anthony White has been much better known than he has wished to admit in southern Africa and among representatives of various organisations for the protection of animals and the conservation of nature in southern Africa as well as in Europe. Anthony White does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection.
In view of the above, and for the reasons given by the District Court in this respect, the Court of Appeal finds that it was justifiable in the circumstances to publish Anthony White's name and picture in Expressen and to publish information about the person Anthony White in Aftonbladet. In so finding, the Court of Appeal has also taken into account that Anthony White had declined to comment on information presented by the journalists of Aftonbladet.
With respect to the question of whether the information is correct, it is word against word. Anthony White has asserted that he is innocent of all the accusations, that information given about him was based on pure invention, that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay, while [the responsible editors] appear still to assert that it cannot be excluded that Anthony White could be the person who murdered Olof Palme. The Court of Appeal concludes, however, that [the responsible editors], who have the burden of proof for their claims, have not shown that the disseminated information was correct.
As regards the question of whether there has been a reasonable basis for the assertions, the Court of Appeal makes the following considerations.
In defence of the publications in question, [the responsible editors] have asserted, among other things, that Anthony White's name and picture have been published in international news media and on Swedish television.
In response to what has been stated in this respect, the Court of Appeal would point out that each newspaper is responsible for its own publication. Consequently, the fact that the name and picture of the plaintiff had already been published by other news services has not relieved Expressen and Aftonbladet of the obligation to make their own assessment of the credibility of the information. The fact that the information had already been published by other media shows, however, that these news services might have considered that there was a reasonable basis for the information.
In their defence, [the responsible editors] have also pointed out that, despite time constraints, they had careful checks made which gave an unequivocal picture of Anthony White.
It has been established that the main basis for the assertions in issue in the case was the statements made by [former head of the South African security police] Dirk Coetzee and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues, public servants [and] representatives of various organisations for the protection of animals and the conservation of nature. However, with a few exceptions, the persons contacted have not been named.
The contents of the testimony given by [the six journalist witnesses] before the Court of Appeal show that each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee's statements and to check with reliable sources who the person Anthony White was. What has come to hand in the case reveals that the witnesses, each one through their own work, have received concordant information. Checks have been made with several informants in different countries and in different capacities. ...
Having regard to the above, in particular the checks made, and to the fact that the informant Dirk Coetzee also here [before the Court of Appeal] has given the impression of being a credible person, the Court of Appeal considers that the communication of the identifying information does not appear unjustified. In the Court of Appeal's view, there has been a reasonable basis for the assertion and the reproduction of the picture in Expressen. The Court of Appeal further considers that Aftonbladet, in the circumstances, must be considered to have performed the checks that were called for. Having regard to this and the reasons given with respect to the publication in Expressen, the Court of Appeal finds that there was a reasonable basis also for the assertions in Aftonbladet.”
On 29 May 2002 the Supreme Court (Högsta domstolen) refused the applicant leave to appeal.
B. Relevant domestic law
Chapter 7, section 4 of the Freedom of Press Act provides:
“With due regard to the purpose of freedom of the press for all, specified in chapter 1, the following acts shall be deemed to be offences against the freedom of the press if committed by means of printed matter and if they are punishable by law: ...
14. defamation, whereby a person points out someone as a criminal or as having a reprehensible lifestyle, or otherwise communicates information liable to expose that person to the contempt of others, and, if the person defamed is deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the grave except, however, in cases in which it is justifiable to communicate the information, having regard to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for the assertion; ...”
Chapter 5, section 1 of the Penal Code reads:
“A person who points out someone as being a criminal or as having a reprehensible lifestyle or otherwise communicates information liable to expose that person to the contempt of others, shall be sentenced for defamation to a fine.
If he was duty-bound to make a statement or if, in the circumstances, it was otherwise justifiable to communicate information in the matter, and proof is presented that the information was correct or there were reasonable grounds for the assertion, liability shall be excluded.”
Chapter 5, section 2 of the Penal Code provides:
“If the offence defined in section 1 is regarded as gross, the person shall be sentenced for gross defamation to a fine or to imprisonment for no more than two years.
In assessing whether the offence is gross, particular regard should be had to whether the information, because of its content, the scope of its dissemination or otherwise, was liable to cause serious damage.”
COMPLAINTS
1. The applicant claims that he did not have a hearing within a reasonable time. In this respect, he invokes Article 5 of the Convention.
2. He further complains under Article 6 of the Convention that he was not presumed innocent, as the Swedish courts failed to convict the legally responsible editors of the newspapers in question for the defamatory statements.
3. The applicant also complains that his right to respect for his private and family life under Article 8 of the Convention was breached as the courts failed to provide due protection of his name and reputation.
THE LAW
1. The applicant complains about the length of the proceedings in the case. The Court observes that this complaint falls to be considered under Article 6 § 1 of the Convention, the relevant parts of which read:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ...”
The Court considers that Article 6 § 1 of the Convention is applicable to the joined private prosecution and action for damages in the case (see, among other authorities, Helmers v. Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 14, §§ 29-30). It notes that, according to the applicant, they were instituted on 23 September 1998 and that they ended on 29 May 2002 when the Supreme Court refused leave to appeal. The total length of the proceedings thus amounted to approximately 3 years and 8 months.
The case was examined by courts of three instances. The two lower instances held oral hearings at which several witnesses were heard and they made complete examinations of the merits of the case. The subject-matter of the case must be considered to have been of some complexity. In these circumstances, the Court considers that neither the total length of the proceedings nor any particular periods during those proceedings were excessively lengthy.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The applicant further complains that he was not presumed innocent. Article 6 § 2 of the Convention provides:
“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The applicant states that he did not murder Olof Palme and that he is not a poacher or a smuggler or anything else alleged in the articles published by Expressen and Aftonbladet. He has never been convicted of or charged with any such crimes. By failing to take measures against the defamation to which he was subjected, the Swedish courts did not presume his innocence.
The Court reiterates that the applicant was not charged with a criminal offence in the proceedings in question; rather, the legally responsible editors of Expressen and Aftonbladet had to answer criminal charges made by the applicant. While this does not exclude the possibility of the courts making utterances suggesting that the applicant was criminally liable and thereby breaching the presumption of innocence, the mere fact that they acquitted the editors does not suffice to come to that conclusion.
In assessing, under the relevant provisions of the Freedom of the Press Act and the Penal Code, whether there were grounds for excluding criminal liability for the otherwise defamatory statements, the courts had to determine, inter alia, whether the information given in the newspaper articles was correct or there was a reasonable basis for the assertions made therein. Neither the District Court nor the Court of Appeal stated that the information was correct, i.e. that the applicant had in fact committed the crimes alleged in the articles; the appellate court specifically pointed out that the editors had the burden of proof for their claims and had failed to show that the information was correct.
Instead, the courts found that there had been a reasonable basis for the assertions made in the articles. In reaching that conclusion, the courts had regard, inter alia, to the type of sources that had provided the information and the efforts made by the journalists involved to check the information received. There is nothing in the judgments by the Swedish courts which involves a finding of guilt in respect of the applicant.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant finally complains that his right to respect for his private and family life was breached as the courts failed to give due protection of his name and reputation. He relies on Article 8 of the Convention, which in its relevant part provides as follows:
“1. Everyone has the right to respect for his private and family life, ...
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 ... for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
For these reasons, the Court by a majority
Decides to adjourn the examination of the applicant's complaint under Article 8 of the Convention;
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy