CASE OF ERLA HLYNSDÓTTIR 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, Ms Erla Hlynsdóttir, is an Icelandic national who was born in 1978 and lives in Reykjavík. She is a journalist working for the newspaper DV. In February 2009, a Mr A contacted the applicant about a story which he asked to be published by DV. According to Mr A’s account Mr B, a person known for being violent and whose acts of violence had recently been commented on in the press, had attacked him at his strip club, called Strawberries. He had allegedly done so on the order of the owner of a rival strip club. The applicant responded that she would look into the story and would contact Mr B in order to hear his account and also the owner of the rival strip club. Being dissatisfied with the applicant’s reply, Mr A insisted that his version of events be published. The applicant refused to do so and decided to carry out research in relation to Mr A’s account. She interviewed him and recorded the interview on tape. 6. On 26 February 2009 DV published a news report by the applicant entitled “Strip Kings Battle”, on the subject of Mr A’s accusations against Mr B with regard to the alleged assault at the Strawberries strip club. The article referred to interviews with Mr A, Mr B and Mr Y. 7. Mr A was reported to have stated that on the night before 7 February 2009, Mr B had been among the patrons of Strawberries accompanied by two other men. He left the club in the course of the night, but returned just before closing time, when he allegedly attacked the employees of the restaurant. Following this Mr A had tried to show him out. Suddenly Mr B attacked Mr A and struck him with his fist, as a result of which he sustained a cracked skull and severe injuries to his eye. Mr A reported the incident to the police. 8. Mr B., whose interview with the applicant was published in the same news coverage, was reported to have denied all the accusations made by Mr A. According to Mr B, he and his two friends had been out partying and had decided to visit the Strawberries club. They had only been there for a short while when Mr A insisted that they leave. As they refused, the doormen forcibly removed Mr B. In the commotion both he and Mr A had been injured. 9. Mr A instituted defamation proceedings against the applicant before the Reykjavík District Court, arguing that the following statement made by Mr B amounted to unlawful defamation in breach of Articles 234, 235 and/or 236 of the Penal Code and requested that it be declared null and void (dauð og ómerk) under Article 241(1): “He [the plaintiff] has been spreading all around town the rumour that no one with an attitude would come to Strawberries, because he has the Lithuanian mafia in there, and that I was just taken and beaten up in there. I don’t really get this. He really needs to make up his mind whether he thinks I was beaten up or he was.” 10. He also submitted that the following sub-heading amounted to unlawful defamation and should be declared null and void: “Rumour about the mafia” 11. Mr A in addition sought 2,000,000 Icelandic krónur (ISK) (corresponding approximately to 13,850 euros (EUR) at the time) plus interest in compensation for damages, an order under Article 241(2) to pay him ISK 500,000 to cover the costs of publication in the press of the court’s reasons and conclusion in the defamation case, plus legal costs. 12. In her pleadings before the District Court, the applicant prayed in aid the freedom of expression guaranteed under Article 73 of the Icelandic Constitution and Article 10 of the Convention as well as the Court’s caselaw. She further relied on section 15(2) of the Printing Act no. 57/1956, according to which the author of a statement was responsible for the publication of its content. The article had indicated the identity of the author of the disputed statements and the transcripts of the interview had shown that they had been quoted from their named author, Mr B. Accordingly the applicant could not be regarded as the author of the allegations. In so far as the sub-heading was concerned, she pointed out that this had only paraphrased Mr B’s remarks. 13. The applicant further disputed that item 1 was defamatory. The first part of that remark had consisted of Mr B’s account that the plaintiff had himself spread the rumour that no one came to the Strawberries club with an attitude, because the Lithuanian mafia was present there. Mr B’s remark did not amount to an allegation that the Lithuanian mafia was present at Strawberries, but that Mr A wanted the rumour to be spread. In fact, it was clear from the interview that those interviewed by the applicant thought that no Lithuanians went to the club but that this was a false rumour that the plaintiff wanted to have spread around town. When considering the remark in its true context, it was clear that in no way did it contain Mr B’s claim that the plaintiff was involved in criminal conduct. Whatever could be said about mafia operations, the remark contained no allegation regarding the plaintiff’s activities that could be singled out as mafia related, i.e. criminal conduct. The main point was whether the plaintiff had been accused of such conduct. This had clearly not been the case. Accordingly, there was no basis for considering that the remarks were covered by the provisions in the Penal Code on protection of reputation. Moreover, the word “mafia” had no defined meaning in the Icelandic language. 14. As regards the second part of the remark, Mr B had stated that Mr A was spreading the rumour that Mr B had been taken and beaten up inside Strawberries. As could be gathered from the interview and the remark itself, it was nowhere stated that the plaintiff had beaten up Mr B or anyone else. However, the interview and the above-mentioned remark stated that the plaintiff had mentioned in many places the story that Mr B had been beaten up inside the club. That statement was true, as Mr B had been in a fight inside the club and the plaintiff had taken the initiative to contact DV and had provided information regarding that incident. 15. Finally, the applicant stressed that the whole dispute had originated in Mr A’s own initiative to have the story published. It would have been reasonable for him to expect that the journalist would seek to provide information about both versions of the events and that the person against whom he had levelled serious accusations would have a different version. 16. By a judgment of 21 December 2009 the District Court found for the plaintiff Mr A and against the applicant, giving the following reasons. “The defendant bases her claim for acquittal mainly on lack of involvement, as the remarks have been quoted word for word from their named author, [Mr B]. The defendant admitted in court to have written the said article and stated that she believed she had been the author of the disputed sub-heading. According to an audio recording of the [applicant’s] interview with [Mr B], the disputed statement made by [Mr B] went as follows: ‘He has been spreading rumours all around town about it. That no-one really enters Strawberries with an attitude you see. ‘Cause he has the Lithuanian mafia and I was just taken and beaten up in there, you know.’ A slight change in wording has been made in the [applicant’s] article, not affecting the contents and only involving removing the emphasising words you see and you know. The remark was published within quotation marks in the paper. Having regard to the Supreme Court’s judgment in case No. 328/2008, the [applicant] is found to be the article’s and sub-heading’s author for the purposes of section 15(2) of the Printing Act No. 57/1956, regardless of whether Mr B can also be found to be the author of the remarks quoted verbatim after him, and the [applicant] is responsible for remarks presented there, as well as sub-headings. It is clear that the interview with the plaintiff, [Mr A], whether he initiated it or not, had been taken with his consent and wishes, even though he was dissatisfied with the article when it was published in the paper, where also the opinions expressed by other persons in interviews conducted by the [applicant] had been published. In her interview with the plaintiff he had accused [Mr B] of various matters. It ought to have been clear to him that his remarks would be shown to the person concerned and that this person would be given an opportunity to state his version of events. The words that the article’s author had quoted directly from [Mr B], which had been the cause for the plaintiff’s action, are intended to give the article’s readers the impression that the plaintiff is in charge of an organised, international criminal organisation. The journalist has not demonstrated or sought to ascertain that the allegation, which rendered [Mr B]’s words, is true. The allegation contained a defamatory innuendo, see Article 235 of the Penal Code, and should, in accordance with the plaintiff’s claim, be declared null and void, as should the sub-heading ‘Rumour about the mafia’, which referred to the remark. By virtue of the statements declared null and void the [applicant] has unlawfully injured the plaintiff’s honour. She is therefore obliged to pay him damages in accordance with section 26 (1) of the Damage Compensation Act No. 50/1993. In the present case the amount of ISK 200,000 [approximately EUR 1,100 at the time] is deemed a reasonable level of compensation. ... With reference to Article 239 of Act No. 19/1940 the plaintiff’s request that the [applicant] be punished for the statements is rejected. The plaintiff is found to be entitled to the reimbursement of expenses incurred for the publication of the motives and conclusions of the judgment, as he requested under Article 241(2) of the Penal Code. The plaintiff has not presented any particulars in support of his claim as to the size of the amount requested nor supported it with any arguments. This item will therefore be determined on the basis of the court’s own assessment and the amount of ISK 150,000 is considered reasonable. In light of the foregoing, the [applicant] is required to pay the plaintiff’s legal costs, which it is considered reasonable to assess at ISK 350,000 (inclusive of VAT).” 17. The applicant sought to appeal to the Icelandic Supreme Court but on 25 March 2010 the latter refused her leave to appeal. This was on the ground that the financial value of what was at stake in the appeal (legal costs not being relevant) did not reach the statutory minimum level for grant of leave to appeal and that there were no special circumstances warranting an exception being made to this requirement in the applicant’s case. 18. 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.” 19. 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.” 20. 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.” 21. 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.” 22. 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.”