CASE OF FLINKKILÄ AND OTHERS v. FINLAND
Remainder inadmissible;Violation of Art. 10;No violation of Art. 7;Pécuniary and non-pecuniary damage - award
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicants were born in 1948, 1951, 1962 and 1951 respectively and live in Helsinki, except for Ms Isosaari who lives in Ikkala. 6. The first and second applicants are editors-in-chief of the nationwide magazine Seura and the third and fourth applicants are an editor-in-chief and a journalist of the nationwide magazine Nykyposti. 7. On 4 December 1996 A., the National Conciliator (valtakunnansovittelija, riksförlikningsmannen) at the time, and B., his female friend, entered late at night A.’s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A.’s grown-up children, led to A.’s arrest. Due to the incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage (vahingonteko, skadegörelse), and B. to a fine for assault. On 17 January 1997 the Council of State (valtioneuvosto, statsrådet) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court (hovioikeus, hovrätten) upheld the judgment with respect to B. As regards A., the case had lapsed as he had died on 14 May 1998. On 15 December 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused B. leave to appeal. 8. On 31 January and 1 March 1997, respectively, the magazines published an article about A. The article of 31 January 1997 in Seura magazine was based on A.’s interview, and B.’s name and age, together with her picture, were mentioned once in the article. The article was entitled “A.’s sincerity in the balance” and it concerned A.’s feelings about his dismissal and his possible divorce in the aftermath of the incident of 4 December 1996. The article of 1 March 1997 in Nykyposti magazine, which was entitled “Divorced wives’ club”, also dealt inter alia with A.’s possible divorce and his feelings about his dismissal. It was claimed that A.’s divorce proceedings had accelerated due to the incident of 4 December 1996, and B.’s name was mentioned once in that context. This article contained no pictures of B. Prior to these articles, B.’s identity had been revealed at least in a Swedish newspaper on 21 January 1997 and in a Finnish nationwide television broadcast on 23 January 1997. 9. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident on 4 December 1996 and the circumstances surrounding it. They made such a request with respect to the applicants, claiming that the articles published in Seura and Nykyposti had invaded B.’s privacy. It appears that in regard to all but one of these requests no charges were brought. On 17 September 1998 the public prosecutor decided not to bring charges against the applicants as, according to him, there was no indication of any crime. 10. On 25 October 1998 B. complained to the Prosecutor General (valtakunnansyyttäjä, högsta åklagaren) about the decisions not to prosecute and asked him to reconsider the cases. On 5 October 1999, after having considered the charges, the Deputy Prosecutor-General requested the public prosecutor to bring charges, inter alia, against the applicants. He reasoned his decision by stating, inter alia, that the facts revealed in the articles fell within the scope of private life and that no derogation could be made in this case as B. was not a public figure. 11. On 15 November 1999 the public prosecutor, by order of the Deputy Prosecutor-General, brought charges against the applicants under Chapter 27, section 3(a), paragraph 2 of the Penal Code. At the same time charges were also brought against another journalist and editor-in-chief of another magazine to be examined in the same proceedings. This journalist and editor-in-chief have lodged a separate appeal with the Court (see Tuomela and others v. Finland, no. 25711/04, 6 April 2010). 12. B. concurred with the charges brought by the public prosecutor. On 4 January and 10 November 2000 she pursued a compensation claim against all the applicants, which was joined to the criminal charges. 13. Following an oral hearing on 8 December 2000, the Espoo District Court rejected all the charges on 15 December 2000, finding that the information concerning B.’s private life in the article could not as such be conducive to causing her particular suffering, except for the information concerning her relationship with A. However, since the incident of 4 December 1996 B. must have understood that she could no longer seek protection on this ground. Thus, the applicants had not been under a duty to assess whether revealing B.’s identity could have caused her suffering. Furthermore, it had not been proved that the applicants had had the intention of invading B.’s privacy. Accordingly, all the compensation claims against the applicants were also rejected. 14. By letters dated 10 and 14 January 2001, respectively, the public prosecutor and B. appealed to the Helsinki Appeal Court, reiterating the charges and the compensation claims. Moreover, on 17 September 2002 B. requested that the case file be declared secret for at least ten years from the date of the judgment. 15. In its judgment of 15 May 2003, the Appeal Court first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions and the conclusions. Additionally, B.’s identity was not to be revealed in the public parts of the judgment. The court found that the matter was very sensitive, that it fell within the scope of private life, and that the secrecy accorded did not violate Articles 6 or 10 of the Convention. As to the merits of the case, the court, without holding an oral hearing, quashed the District Court’s judgment and sentenced the applicants to pay twenty day-fines, amounting to 1,180 euros (EUR), EUR 1,100, EUR 1,020 and EUR 120 respectively, for invasion of private life. Moreover, the first and second applicants were ordered jointly to pay B. EUR 5,000 plus interest and the third and fourth applicants EUR 3,000 plus interest for non-pecuniary damage as well as her costs and expenses jointly with the publishing company. The applicants paid in total EUR 22,074.31 in fines and compensation. 16. The Appeal Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B.’s name had been mentioned twice in the context of an interview with A., had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. The fact that B.’s identity as A.’s friend had previously been revealed in the media did not justify the subsequent invasion of her private life. The Penal Code provision in question did not require that intent be shown; it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering. The applicants, therefore, had had no right to reveal facts relating to B.’s private life or to publish her picture. 17. By letter dated 10 July 2003 the applicants applied for leave to appeal to the Supreme Court, claiming, inter alia, that the provision of the Penal Code in question did not define with sufficient clarity which acts fell within its scope and that, as a result, the Penal Code had been applied ex analogia. No intent had been shown, and nor was the Appeal Court judgment adequately reasoned in this respect. Moreover they claimed that, in declaring that the case file was to remain secret, the Appeal Court had not given reasons which would constitute sufficient grounds for the measure. Finally, the Appeal Court had not even tried to indicate on what grounds freedom of expression could be restricted in this case, and therefore the Appeal Court judgment was in contradiction with Article 10 of the Convention. 18. On 20 January 2004 the Supreme Court refused the applicants leave to appeal. 19. Section 10 of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919, as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000), provided: “Everyone has the right to freedom of expression. The right to freedom of expression entails the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by an Act of Parliament. Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.” The same provision appears in Article 12 of the current Constitution of 2000 (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999). 20. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone’s right to private life is guaranteed. 21. Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material. 22. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising inter alia from an offence against liberty, honour, home or private life. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering. 23. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. 24. Chapter 27 (as amended by Act no. 908/1974), section 3(a), of the Penal Code (rikoslaki, strafflagen) read, at the relevant time, as follows: “A person who unlawfully, through the use of the mass media or in another similar manner, publicly disseminates information, an insinuation or an image depicting the private life of another person, such as to cause him or her damage or suffering, shall be convicted of invasion of privacy and sentenced to a maximum term of imprisonment of two years or to a fine. A publication that deals with a person’s behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered an invasion of privacy if the reporting was necessary for the purpose of dealing with a matter of importance to society.” 25. In the travaux préparatoires of the above-mentioned provision (see government bill HE 84/1974) there was no precise definition of private life but matters such as, inter alia, family life, spare time activities, health and relationships and such conduct in socially significant position that had no significance to the relevant exercise of power, were considered as a part of private life. It was further required that the act might have caused damage or suffering. Such damage might have also been "immaterial damage, which might have manifested itself in problems with social interaction or respect". An ordinary person enjoyed the strongest protection of private life. His or her involvement in an incident with importance to society might have warranted an exception to the protection. In any case, if an offence was of such a kind that it could not be regarded as having social significance, it was a matter to be protected as belonging to the sphere of private life, otherwise the protection of private life did not restrict publishing. Moreover, the publishing could not be to a greater extent than was necessary. Thus, the necessity of mentioning a person’s name or other description of a person enabling identification was always subject to careful consideration. 26. In 2000, Chapter 27, section 3(a), of the Penal Code was replaced by Chapter 24, section 8 (Act no. 531/2000). Under the new provision on the injury of personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society. 27. According to the travaux préparatoires (see government bill HE 184/1999), the content of the new provision corresponds to the old Chapter 27, section 3(a), of the Penal Code. The amendments and clarifications made to the existing provision were mainly technical. The provision thus still restricts the protection of the private life of persons having important political or economic powers. This restriction, however, applies only to the persons referred to, not to their close friends and family. According to the Parliamentary Law Committee’s Report (lakivaliokunnan mietintö, lagutskottets betänkande LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions. 28. The government bill HE 184/1999 further provides that in the assessment of interferences with private life, the lawfulness of the interference and the concept of private life are taken into account. A person’s consent to the provision of information has relevance in the assessment of the lawfulness of the interference. Without explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see Parliamentary Law Committee’s Report LaVM 6/2000). With regard to the concept of private life, a reference is made to the explanatory works concerning the Constitution’s provisions on fundamental rights and to the government bill HE 84/1974). Moreover, private life is, in particular, protected against dissemination of information which may be correct as such. In order for the act to be punishable, it is necessary that the information concerns the private life of the person in question (see the government bill HE 184/1999). 29. Section 2 of the Act on the Publicity of Court Proceedings (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; Act no. 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest. Section 3 provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation. Section 9 stated that the provisions laid down in the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet: Act no. 621/1999) were applicable to trial documents. Information and documents relating to a trial are, as a rule, public once charges have been brought unless provided otherwise by an Act. 30. The Supreme Court decision (KKO 1980-II-99) concerned public showing of a series of photographs of half-naked children. The act was committed before the entry into force of Chapter 27, section 3(a), of the Penal Code and no criminal sanctions were requested. 31. In a Supreme Court decision (KKO 1980 II 123) the following was noted (summary from the Yearbook): “The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.” 32. On 11 June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook): “A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.” 33. The second decision (KKO 1997:81) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook): “Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.” 34. The article published in the periodical had similarly mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid. 35. The Supreme Court’s decision of 26 September 2001 (KKO 2001:96) concerned the publication in a magazine of an article which had described a pending criminal case in which the accused had been charged with, inter alia, aggravated fraud. The article had been illustrated, without the accused’s permission, with another article published previously in another magazine and with a picture of the accused published in that connection. The accused’s name had been given in the text of the article and she could be recognised from the picture. The Supreme Court found that the criminal case had no such social significance that would justify its publication without the accused’s permission and, consequently, her private life had been invaded. 36. The Supreme Court’s decision of 25 June 2002 (KKO 2002:55) concerned the same facts as the present case: when interviewing A., B.’s name was mentioned in the television broadcast in January 1997, that is, after they had been convicted. The court found that the facts discussed in the television programme with regard to B. were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name. The interviewer and the television company were ordered to pay B. damages in the amount of EUR 8,000 for disclosing her identity in the television programme. 37. Another decision of 4 July 2005 (KKO 2005:82) concerned an article about a relationship between A., who worked as a press officer for a candidate in the presidential elections, and B., the ex-spouse of a TV journalist. A.’s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court’s case-law, found that A. did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A.’s privacy. 38. In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence was not a private matter of the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoyed the right inherent in private life to live in peace. According to the Personal Data Act, any information about the commission of an offence and the resulting sentence qualified as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents did not mean that information made public during the proceedings could be freely published as such by the media. The Supreme Court concluded that publishing the name of a person convicted of, inter alia, assault and deprivation of liberty did not invade his privacy as the person concerned had been convicted of offences of violence which had also degraded the victim’s human dignity. Furthermore, the article in question did not include his photo. 39. The Supreme Court’s decision of 16 March 2006 (KKO 2006:20) concerned the scope of the private life of a leading public prosecutor whose name or identify had not been revealed in an article which mainly concerned his wife who had been suspected of having committed a crime. The Supreme Court concluded that the issue had had social significance as the person under suspicion was the public prosecutor’s wife. Even though the public prosecutor could have been identified from the article, this was justified by the fact that his own impartiality as a prosecutor was at stake. 40. In the Supreme Court’s latest decision of 22 January 2009 (KKO 2009:3) A. had been convicted of incest with his children and the case file was declared secret. Later A. revealed certain details of the case in a television programme. The court found that even though the children had remained anonymous in the programme, they could still be identified through the fact that A. had appeared in the programme undisguised and his first name had been given. The privacy of the children and their mother had thus been invaded. 41. The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position which justified publication (Article 26). 42. New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. The public nature of information does not necessarily mean that it may be published. Special care must be observed when discussing matters concerning a minor (Article 30). The name, photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his or her position or offence. As regards a minor or an unaccountable person information should be disclosed with restraint (Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he or she is only a suspect or has merely been charged (Article 32). 43. Also the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier), which is a self-regulating body established in 1968 by publishers and journalists in the field of mass communication and whose task is to interpret good professional practice and defend the freedom of speech and publication, has issued a number of resolutions and statements, inter alia, in 1980 and 1981. The former concerned the content of private life and the latter disclosure of names in crime news coverage. 44. In its statement of 1981, the Council for Mass Media stated, inter alia, that according to the main principle of protection of identity, it is justifiable to publish a person’s name in crime news coverage only if there is a significant public interest in doing so. A journalist shall consider such publication separately in each individual case, weighing the harm that may be caused to the person concerned and to his or her family and close persons against the general importance of publishing the name. Furthermore, the Council stated that the aggravated, cruel or special nature of an act does not alone suffice to justify disclosing the perpetrator’s identity. An offence may, however, arouse so much public attention as to warrant publishing the name. Finally, the Council divided persons into three groups as to the protection of identity: (1) persons exercising political, economic or administrative power; (2) other public persons, for example in the sectors of entertainment, sports, arts or science; and (3) ordinary citizens. The Council noted that the protection of identity is narrowest for group 1 and most extensive for group 3. 45. On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. In point 8 of the principles appended to the recommendation, it considers as follows: “Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” 46. The commentary to the recommendation considers as follows (paragraphs 26 and 27): “Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.” 47. On 4 October 2007 the Parliamentary Assembly of the Council of Europe adopted Resolution 1577 (2007), Towards decriminalisation of defamation, in which it urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay.