CASE OF BJÖRK EIÐSDÓTTIR v. ICELAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano
5. The applicant, Mrs Björk Eiðsdóttir, is an Icelandic national who was born in 1974 and lives in Reykjavík. At the material time she worked as a journalist for Vikan, a weekly magazine. 6. In 2007 there was a public debate in the print and televised media in Iceland on whether the regulations pertaining to strip clubs should be made stricter or whether such clubs should be banned. In June 2007 a magazine named Ísafold published an article discussing the links between such clubs and prostitution. It maintained that the conditions of strip club dancers originating from eastern Europe could be compared to human trafficking as defined in the relevant United Nations instruments. 7. Subsequently, Vikan published in its issue no. 31 interviews with three east European women who worked at a strip club called Goldfinger owned by Mr Y. They had stated that they were happy working for Mr Y and that the critical remarks made about strip clubs could only be explained by the envy of certain other women. In the same issue, Vikan published the interviews of two anonymous strip dancers who described negative aspects of their jobs, namely that it was accompanied by prostitution and drug addiction. 8. Thereafter Vikan was contacted by a young Icelandic woman, Mrs Z, who offered to tell her story. She was a former strip dancer who had worked at several strip clubs and had worked for Mr Y. She said that she had felt offended at seeing strip dancing being portrayed as a glamorous career. Mrs Z met the applicant for an interview, which the applicant tape recorded and then typed up on the basis of the recording. The applicant sent the typed version to Mrs Z by e-mail for confirmation and consent to publish the story. Mrs Z responded in the affirmative. 9. On 23 August 2007 Vikan published in its issue no. 34 an article based on the interview conducted by the applicant with Mrs Z. An introduction referred to the above-mentioned coverage in issue no. 31. In the interview, Mrs Z described her work as a striptease dancer in various establishments, notably at Goldfinger owned Mr Y. The article, which had a number of sub-headings, comprised, inter alia, Mrs Z’s description of prostitution which she was reported to have said went on unhindered in these establishments, for example at Goldfinger; her drug addiction after she had started working as a striptease dancer; and threats she had been subjected to in connection with her work. The front cover of the magazine displayed a photograph of Mrs Z, which was also found on the first inside page of the magazine next to an editorial by Mrs G.E.A., the magazine’s editor, dealing with the above-mentioned article. Photographs of Mrs Z also featured on the title page of the article, next to its main text and a photograph of Mr Y. 10. Alongside the latter photograph it was stated that the magazine had contacted him and had asked his opinion about Mrs Z’s account that he “encourage[d] girls who work[ed] for him to engage in prostitution and act[ed] as an intermediary in this respect”. It was further stated: “[Mr Y] totally rejected this. ‘I can categorically state that not one of my girl employees is encouraged to engage in prostitution. But, on the other hand, I cannot prohibit acts by them in their free time.’ When it was put to him that prostitution reportedly took place within the walls of his club, his answer was that this was not, to his knowledge, true to fact. ‘This is simply a tremendous lie and it seems that those who are successful must always be slandered. I have always tried to act as fairly as I possibly can towards my girls. I have been active in this branch for nine years, and I would not have retained my employees if I had asked them to do something against their will, ... [Mr Y] also was of the view that Vikan’s account of these matters was prompted by vicarious considerations, as Vikan was published by the same company as Mannlíf and Ísafold, against which he said that he had initiated legal proceedings. [Mr Y] was emphatic that no falsehood should be published about him or his business, and finally stated: ‘I hope to God that you will not have any troubles on account of what you publish in your magazine.’” 11. On 5 and 6 September 2007 Mr Y lodged defamation proceedings against the applicant, the editor, Mrs G.E.A., and Mrs Z before the Reykjavík District Court. In his writ, in which he set out the four judicial claims described below, he requested that the following statements published by Vikan in the relevant issue, be declared null and void (dauð og ómerk): A. “I ended up working for [Mr Y], but there was a lot of prostitution at his clubs, and huge pressure was placed upon the girls who worked for him to engage in such activities.” B. “[Mr Y] has always been strongly involved in prostitution which occurs inside his clubs. After dancing in private was banned, the prostitution has simply been carried out behind curtains allegedly used for the purpose of talking to the clients in private.” C. “It varies a lot whether the clients pay [Mr Y] himself for the service or deal directly with the girls...” D. “I have overcome my fear of those men, although I have certainly been threatened with death and for a while I was too afraid to leave the house.” E. “The girls he employs come here temporarily for three months at a time and are treated as if they were in prison.” F. “In between, they are really under house arrest in the building apart from a period of time during which they are permitted to go outside.” G. “The reason for this is that girls were discovered to have found clients for themselves outside the club without [Mr Y] receiving a share of the fee; he wants to control the prostitution himself.” A. “Prostitution the rule rather than the exception.” B. “Threatened with death.” C. “Brought to Iceland without any suspicion of what was going to happen.” A. “Threatened with death if she told anyone.” [Published as a heading on the front page.] B. “[Mrs Z] worked as a stripper and tells the Vikan reporter all about the prostitution and the threats to her life.” [Published in a summary in the table of contents.] C. “[Mrs Z] says the prostitution is allowed to continue unhindered and that it is conspicuous inside the striptease clubs.” [Published in a summary in the table of contents.] “[Mrs Z.] is incredibly brave to have the courage to step forward and tell her story despite having been threatened with death ... .” 12. Mr Y argued that the responsibility for the statements in judicial claim no. 1 lay mainly with Mrs Z or, in the alternative, with the applicant as the author of the article. The latter was responsible for the remarks in judicial claim no. 2 and the defendant G.E.A., as the magazine’s editor, was responsible for the remarks in judicial claim no. 3. Alternatively, in the event that the court did not accept this claim, Mr Y requested that the applicant be held responsible as the author of the article referred to in the heading and summary in question. 13. In addition, Mr Y requested an order that the respondents, jointly and severally, be ordered to pay him 5,000,000 Icelandic krónur (ISK) in respect of damages and ISK 800,000 to cover the cost of publishing the judgment in the case in three newspapers and also in the following issue of Vikan. 14. In disputing the above claims, the applicant and the editor of Vikan argued inter alia: “Most people would agree that the plaintiff is a controversial individual because of the activities in which he has been involved in Reykjavík and Kópavogur. The debate relating to the connection between striptease dancing and prostitution is tenacious, not least because abroad such operations are often run side by side, openly and in a legal manner, but also because of the nature of these activities. As an example of the persistence of such rumours in Iceland, a report on human trafficking in Iceland (court document no. 7), by the US Embassy in Iceland, dating from 2006, could be mentioned. At page 3 of the report, it is stated that during its compilation, a member of the embassy staff was offered sexual services at the restaurant Goldfinger. It is an established fact that the operation of pole-dancing establishments comprises obtaining girls, for the most part foreign nationals, for the purpose of dancing scantily clad or nude in front of the clients of the establishment, or in private cubicles, and, as indicated by the term, it is hard to observe everything that goes on inside such closedoff spaces. Furthermore, the plaintiff has admitted in public that there have been incidents at Goldfinger where clients were offered sexual services, cf. an interview with the plaintiff on Channel 2, 1 June 2007 (court document no. 6). Because of the mystique, among other things, which to most people, surrounds such activities as well as persistent rumours regarding prostitution and human trafficking, the defendants felt that a discussion of this matter would be of interest and relevance to the general public. The defendants refer, for example, to a news item contained in court document no. 9, which cites the Chief of Police in Reykjavík as stating in his report regarding a licence for Goldfinger that European research has shown striptease dancers to be subjected to various kinds of abuse and, in many cases, they become the victims of human trafficking or other crimes. The defendants feel that the plaintiff has to accept and tolerate controversial discussion with regard to the operation of Goldfinger .... The presentation of the plaintiff’s case, however, is characterised by the shortcoming that he appears to identify himself with the operation of all the poledancing establishments in Iceland.” 15. In the course of the oral proceedings before the District Court, Mr Y and Mrs Z concluded a judicial settlement agreement, whereby he withdrew his action against her. He maintained his claims against the applicant and the editor. 16. By a judgment of 4 April 2008 the District Court found that several of the statements originating from Mrs Z had been defamatory and that she in principle could be held liable but the action against her had been withdrawn. In contrast, the applicant and the editor could not be held liable and so the District Court dismissed Mr Y’s action against them. 17. Mr Y then appealed against the District Court’s judgment to the Supreme Court. 18. The applicant and the editor referred to their arguments before the District Court and disputed that the allegations that had formed the subjectmatter of Mr Y’s defamation action had constituted defamatory statements and innuendos against him. In any event, with regard to judicial claim no. 1, according to section 15 of the Printing Act, the respondents could not be held responsible for the affirmations made by Mrs Z in the interview and who ought to be considered as their author. As to judicial claim no. 2, the disputed sub-headings had not contained innuendos directed against the appellant’s honour or allegations to the effect that he had organised prostitution or other illicit activities. The interview had been conducted with Mrs Z who had spoken unreservedly about her experience of working as a striptease dancer in a number of striptease establishments. In processing the interview the applicant had used sub-headings in order to divide the text into chapters for clarification and to highlight each topic separately. She had only referred to the interviewee’s words and had made no independent contribution. The same or similar considerations applied to judicial claims nos. 3 and 4. The conditions for liability under section 26 of the Damage Compensation Act no. 50/1993 had not been fulfilled. The respondents had not made any allegations that exceeded their constitutionally protected right to freedom of expression (Article 73 of the Icelandic Constitution). 19. By a judgment of 5 March 2009 the Supreme Court rejected Mr Y’s appeal in so far as it concerned the editor. In so far as it concerned the applicant, it upheld judicial claim no. 1, items A to C and E to G, and judicial claim no. 2, item A. It ordered the applicant to pay the appellant ISK 500,000 (approximately 3,000 euros (EUR)) in compensation for nonpecuniary damage and ISK 400,000, plus interest, for his costs before the District Court and the Supreme Court. Its judgment contained the following reasons: “The main issue in dispute in the present case is whether the respondents are liable on the basis of section 15 (2) and (3) of the Printing Act, No. 57/1956 for statements that [the applicant] had cited from the interviewee and whether headings and references which the respondents themselves had created, which they maintained was done in close connection with the words used by their interviewee, fell within the provision on freedom of expression in Article 73 of the Icelandic Constitution. The grounds of the case of each party are sufficiently described in the judgment which is being challenged. As indicated therein, the plaintiff based his claim for the annulment of the remarks in judicial claim no. 1, items A to G, on the premise that they contained defamatory innuendos regarding his character, which are the responsibility of the [applicant] as the author of the article, see section 15 (2) of Act No. 57/1956. The title page of the article stated that its text had been prepared by [the applicant]. She confirmed at the court hearing that she had been the author of the article and had also formulated the sub-headings. She had determined the wording of the sub-headings, which, like the article, contained a near-verbatim rendering of [Mrs Z]’s statements. This was indeed her ([Mrs Z]’s) account. [The applicant] stated that she had tape-recorded the interview, used the recording as a foundation for the article and had sent the result to [Mrs Z]. Subsequently [Mrs Z] had confirmed by email that this was an accurate rendering of her account. When comparing the manuscript of the interview and its tape-recording, on the one hand, and the article in question with its subheadings, on the other hand, it is however clear that this is not a verbatim rendering of the interviewee’s statements. However, it is also clear that the [applicant] in the main accurately rendered the substance of what her interviewee had said. As mentioned above, she had later confirmed that her story had been accurately rendered. Since the [applicant] is, as stated on the front page [...], the author of the text and has admitted to having written the article and its sub-headings, she is considered to be the author of the article and the sub-headings in the sense of section 15 (2) of Act No. 57/1956 and as such bears responsibility for this work. It is of no consequence whether [Mrs Z] may also be regarded as the author of the article in the sense of this provision of the law. By the remarks identified in items A, B, С and D of judicial claim no. 1 of his claim, the plaintiff [Mr Y] is alleged to be guilty of offences under Article 206 of the Penal Code [...], by organising for his own profit prostitution among the girls working for him on his premises and by exerting pressure on them for this purpose. The words in items Ε and F, however, convey the suggestion that Mr Y had deprived the girls who worked for him of their freedom, which constituted an offence under Article 226 of the Penal Code. The main text under the sub-heading ‘Prostitution the rule rather than the exception’ contained, inter alia, the words specified in items A and B of judicial claim no. 1, as well as other allegations relating to [Mr Y] and his striptease premises, Goldfinger. It is clear from the relationship between the main text and the heading, that the heading is directed against [Mr Y]. The same applies to this heading as to the remarks in judicial claim items A, B., С and G above. The remarks identified in items A, B, C, E, F and G of judicial claim no. 1 and the sub-heading referred to in item A of judicial claim no. 2 constitute a violation of Article 235 of the Penal Code. They do not comprise an expression of opinion or values but statements of fact that are not covered by Article 73 of the Icelandic Constitution with respect to freedom of expression. In accordance with Article 241 (1) of the Code they are declared null and void by the court. The words mentioned in item D of judicial claim no. 1 were directed against unspecified persons, not against the appellant [Mr Y]. The sub-headings in items B and C of judicial claim no. 2 were of a general nature; nor did the text below those headings appear to link them to [Mr Y]. Therefore, the [applicant] is acquitted with respect to those judicial claims. The words indicated in judicial claim nos. 3 and 4 of the claim, for which the respondent [editor, G.E.A.] bears responsibility according to section 15 (3) of Act No. 57/1956, are also of a general nature and she is therefore acquitted with respect to these judicial claims. The reasoning and conclusions of the present judgment are to be published in the first issue of Vikan that appears after its delivery. However, the claim in respect of expenses for further publication are rejected. Under section 26 (1)(b) of the Damage Compensation Act No. 50/1993, [Mr Y] is awarded compensation, to be paid by [the applicant] with respect to the abovementioned defamatory statements, in an amount of ISK 500,000, plus interest [...], which is deemed actionable. In accordance with this conclusion, the [applicant] is ordered to pay the appellant legal costs before the District Court and the Supreme Court [...]. In other respects, legal costs are not recoverable.” 20. Article 73 of the Constitution of the Republic of Iceland, Act No. 33/1944, read: 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.” 21. The Penal Code No. 19/1940 contained in Chapter XXV, entitled “Defamation of character and violations of privacy’, 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 of 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 of up to one years.” Article 236 “The making or spreading of an injurious allegation against a person’s better knowledge, this shall be subject to up to 2 years imprisonment. If an allegation is published or spread in a public manner, even where the person spreading the allegation did not have a probable reason to believe it to be correct, this shall be subject to fines or up to 2 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.” 22. Section 26(1) of the Tort Liability Act No. 50/1993 provided: “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.” 23. The Printing Act No. 57/1956, 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 lettering.” 24. The Code of Ethics of the Icelandic Journalists Association included the following provisions: Article 1 “A journalist will endeavour to do nothing which will bring discredit upon his or her profession or professional association, paper or newsroom. A journalist shall avoid any actions which could undermine the public opinion of journalists’ work or damage the interests of the profession. A journalist shall always exhibit fairness in dealings with colleagues.” Article 2 “A journalist is aware of his or her personal responsibility for what he or she writes. He or she shall bear in mind that he or she will generally be regarded as a journalist in his or her writings and speech, even when he or she is acting outside his or her profession. A journalist will respect the confidentiality of his or her sources.” Article 3 “A journalist will exercise care in his or her gathering of material, the use of the material and presentation to the extent possible, and show due consideration in sensitive matters. A journalist shall avoid any actions which could cause unnecessary distress or dishonour.”