CASE OF ARNARSON v. ICELAND
No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1963 and lives in Garðabær. At the material time, the applicant was a journalist and a freelance writer for the web-based media site Pressan. 6. The Federation of Icelandic Fishing Vessel Owners (hereafter “the LIU”) represented fishing vessel owners in Iceland and safeguarded their common economic, financial, legal, technical and social interests. 7. The applicant claimed that a private website, B, was publishing anonymous blogs, constantly lobbying for the LIU and discrediting persons who spoke against it. 8. On 21 July 2010 a newspaper, DV, published an article regarding rumours that the LIU was providing financial support to website B. It was alleged that this support amounted to 1,500,000 Icelandic Krónur (ISK) each month. In the article, no mention was made of the LIU’s chief executive office (hereafter “A”). 9. On the same day the applicant published an article on Pressan under the headline “LIU pays 20 million for offensive material” and referred to the article in DV. A sent a short statement to Pressan submitting that the LIU had not supported website B. The statement was published on Pressan on 23 July 2010. 10. On 24 July 2010 the applicant published an article on Pressan where he responded to A’s statement. The article stated that A had to do better than just denying that direct payments had been made to website B and that the LIU, directed by A, was accountable for the offensive material published anonymously on website B. Furthermore, the applicant called into question whether or not the respectable representatives of the LIU’s member companies had agreed to the organisation’s funds being paid through intermediaries to gossips such as the owners of website B. 11. On 26 July 2011 the applicant published a third article on the matter on Pressan. The article stated that the LIU supposedly supported website B with ISK 20 million annually through companies owned by [Mr Y], who was also the owner of website B. Furthermore, the article stated that the applicant knew that not all LIU board members were aware of the organisation’s support for the offensive material on website B since the payments were well-disguised in the organisation’s financial records. 12. Moreover, it stated that the applicant had been told that it was possible that none of the LIU’s board members knew about the organisation’s millions being used to support anonymous slander on website B and that A alone had decided to use the funds in this way. The applicant added that he had not received confirmation of the last statement. A picture of A appeared beside the text of the article. 13. On 28 December 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the following statements be declared null and void: “A. The LIU, directed by [A], is left accountable for the offensive material that is published anonymously on the gossip [website B] B. Then there is the question of whether respectable representatives of the LIU’s member companies would accept that the organisation’s funds are being paid through intermediaries to gossips such as the owners of [website B] C. The LIU supposedly supports [website B] with almost ISK 20 million annually through companies owned by [Mr Y] D. I know that some of the LIU’s board members are not aware of the support for the offensive material on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way.” 14. By judgment of 29 November 2012 the District Court found that only one of the statements, namely that under item D above, had been defamatory and ordered the applicant to pay A ISK 300,000 (approximately 2,500 euros (EUR)) in nonpecuniary damages under the Tort Liability Act, plus interest, and ISK 450,000 (approximately 3,750 EUR) for A’s costs before the District Court. It declared the statement null and void. 15. The judgment contained the following reasons: “... [A] is the chief executive officer of the Federation of Icelandic Fishing Vessel Owners or LIU, as the Federation is called in everyday speech, and he has held the job for almost 12 years. Part of his job is, inter alia, to participate in public debate on maritime affairs and to express the views and policies of the LIU. ... In recent years there has been extensive debate on the advantages and flaws of the current fisheries management system. There are different views on this system in society, and it is of great concern, as the fishing industry is one of the fundamental and most important industries of this country. [A] has, because of his occupation, appeared publicly on behalf of the LIU and advocated the organisation’s views. The defendant, who writes on a regular basis about various social matters, has discussed the fisheries management system though his writings and criticised certain aspects of it. ... According to Article 73(1) of the Constitution no. 33/1944 everyone has the right to freedom of opinion and belief. Article 73(2) of the Constitution states that 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. Article 73(3) of the Constitution 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. Article 10 of the European Convention on Human Rights and Fundamental Freedoms contains an equivalent provision, cf. Act no 62/1994 on the European Convention on Human Rights and Fundamental Freedoms. Therefore, the present case concerns balancing the fundamental provisions on freedom of expression and the right to respect for private life. ... In the court’s view the following statement applies directly to [A]: “I know that some of the LIU board members are not aware of the financial support for the offensive writings on [website B], because the payments are well-disguised in the organisation’s financial statements. I have been told that it is possible that no members of the LIU board know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds this way”. [The applicant] does not maintain that this does not apply directly to [A], his plea for acquittal is based on the fact that the statement does not imply that [A] has committed a criminal offence; furthermore he claims that this is not something he maintains, since he pointed out [in the article] that he was not able to confirm that statement. The evaluation of whether or not the statement includes an accusation of a criminal act or is defamatory will not be based on how [the applicant] understands it but on how readers are expected to perceive and interpret it. The claim that the payments to [website B] have been disguised in the organisation’s financial statements seems to imply that [A], who is responsible for the LIU’s financial accounts as the CEO of the organisation, condones accounting deception to hide the alleged support to [website B]. [The applicant] cannot prove the statement so it is considered not to be proved. The court considers that the second part of the statement, “I have been told that it is possible that no LIU board members know that the organisation’s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation’s funds in this way”, can be understood as an insinuation of fraud by abuse of position [umboðssvik] and negligence at work as it implies that [A] allocated LIU funds against the board’s will and without authorisation. [The applicant] has not shown that the statement is true, for this he carries the burden of proof. The aforementioned statement is considered to be defamatory for [A] and likely to damage his reputation and honour. In accordance with the aforementioned, and with reference to Article 241(1) of the Penal Code no. 19/1940, the statement is declared null and void.” 16. The applicant sought leave to appeal to the Supreme Court, which was refused on 25 February 2013.