BENEDIKTSDÓTTIR v. ICELAND
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Ms Jónína Benediktsdóttir, is an Icelandic national who was born in 1957 and lives in Reykjavík. She was represented before the Court by Mr Hróbjartur Jonatansson, a lawyer practising in Reykjavík. The Icelandic Government (“the Government”) were represented by Mrs Ragna Árnadóttir, as Agent. The facts of the case, as submitted by the parties, may be summarised as follows. On 1 July 2005 an indictment was issued against Mr J.J. (the founder of a supermarket chain, Bonus, from which a multinational company the Baugur Group had originated), his son Mr J.A.J., Chief Executive Officer of Baugur Group, his daughter Ms K. and Mr T.J., a former Deputy Chief Executive Officer of the Group. It resulted from a criminal investigation instigated following a complaint by a Mr Jón Gerald Sullenberger in the United States of America, a former colleague of J.A.J. - Chief Executive Officer of the Baugur Group. The Baugur Group was a major shareholder in 365-prentmiđlum (365 Print Media Pvt. Ltd), which was the publisher of, inter alia, Fréttablađiđ, a national newspaper in Iceland. At the material time there was an ongoing public debate in Iceland relating to allegations that undue influence had been exerted by prominent figures on the most extensive criminal investigations ever carried out in Iceland. On 24, 25 and 26 September 2005 Fréttablađiđ published, without the applicant’s knowledge or consent, a number of e-mail communications which she had sent to and received from other named persons. The disputed material, consisted of direct quotations or paraphrasing of e-mail exchanges, dating back to the years 2002 and 2003, between Jón Gerald Sullenberger, the applicant and Styrmir Gunnarsson, former editor of another newspaper, Morgunblaðið, and between the applicant and T.J, then Deputy Chief Executive Officer of the Baugur Group. The communications related inter alia to Jón Gerald Sullenberger’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of the Baugur Group; Styrmir Gunnarsson acting as an intermediary between Jón Gerald Sullenberger and Supreme Court Advocate Jón Steinar Gunnlaugsson; the applicant’s recommendation to Jón Gerald Sullenberger that he choose Jón Steinar Gunnlaugsson; arrangements discussed between the applicant and Styrmir Gunnarsson on the handing over of material to the tax authorities; the applicant’s suggestion to him that he interview Jón Gerald Sullenberger. In relation to the recommendation of Jón Steinar Gunnlaugsson, reference was made to Kjartan Gunnarsson, managing Director of the Independence Party. The disputed publication also included information about the applicant’s own financial situation and claims, her suggestion to Styrmir Gunnarsson that the interview with Jón Gerald Sullenberger should not take place until her own claims had been honoured; her claims against J.J. of the Baugur Group; her intention conveyed to T.J. to publicise the documents she held in her possession unless the Baugur Group honoured her claims; and T.J.’s suggestion to hand the documents over to the authorities if she thought that the Baugur Group had acted unlawfully. By the time of the disputed publications, the applicant had become a well-known figure in Icelandic society; in September 2005 she had announced her candidacy for the forthcoming local council elections in Reykjavik, due to be held in the spring of 2006. The applicant submitted that, without her knowledge or consent, the e-mails had been unlawfully obtained by a third party unknown to her. Before the national courts she submitted that she had previously ran a company Aktiverum ehf., which had operated a fitness centre under the name Planetpulse. The company had had a computer domain, where the applicant and other employees had been allocated e-mail addresses. She alone knew the password to her e-mail account at the company. In 2003 the company had been wound up and its assets sold, including the computer, or server, on which the employees’ e-mail accounts had been located. No information was available as to whether the administrator of the company’s estate had taken measures to delete e-mails from the server before it was sold. Whilst the materials in question had been printed from her e-mail account in July or August 2005, the computer which she had used in 2002 had long since become inoperative. According to the applicant, after the first publication on 24 September 2005, she demanded Fréttablađiđ’s editor to discontinue further publications and to hand the e-mails over to her, but the editor refused. According to the editor, the applicant had only asked whether his intention was to continue publishing, to which he had responded in the affirmative. She had not asked to have further publication stopped or to have the material handed over to her. On 29 September 2005, the applicant requested the Reykjavík District Commissioner to issue an injunction (sections 24(1) and 26 of the Seizures, Injunctions (Etc.) Act, No. 31/1990) against 365-prentmiðlar ehf, restraining the latter from “publishing [the applicant’s] private materials in the daily newspaper ‘Fréttablaðið’ or in other media owned by the respondent, in part or in their entirety, by means of direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the plaintiff was the sender or the recipient, or other such personal private documents of the plaintiff which the respondent had in its keeping.” The applicant further requested that the District Commissioner remove from the respondent all the aforementioned private materials which the respondent had in its possession and which had been used, or which were evidently intended for use, in the actions in respect of which the injunction was being requested (section 25 (2)). In addition, the applicant requested that the injunction be imposed without prior notice and served at the respondent’s business premises (section 26 and item 2 of section 21 (3) of the Enforcement Measures Act). On 30 September 2005 the District Commissioner, without prior notice and with immediate effect, imposed the requested injunction against further publication and urged the respondent to hand over all the material as requested by the applicant. Fréttablaðið’s news editor, Sigurjón M. Egilsson affirmed that he had the documents in question in his possession and handed them over to the District Commissioner, who took them into his custody. The respondent’s lawyer declared that he accepted the release of the materials and met the applicant’s demands. The above injunction was imposed temporarily, pending the outcome of the proceedings described below. According to the Government no information originating from e-mails pertaining to the applicant was published either pending the court proceedings or after. This is undisputed by the applicant. In October 2005 the applicant instituted judicial proceedings before the Reykjavík District Court against the publisher, 365-prentmiðlar ehf., and K.J., Fréttablaðið’s editor. She requested the District Court to confirm the District Commissioner’s injunction and seizure of the material kept by the publisher but made no further claims in this respect. She did not request that the materials be handed over to her. The applicant requested that the editor, K.J., be convicted and sentenced for having obtained access to her private materials, which had been stored in machine-readable (computerised) form, by trickery or another similar unlawful method, and had pried into their contents, in violation of Article 228 of the Penal Code. She also requested that he be convicted and sentenced under Article 229, pursuant to which any person who publicly disclosed the private affairs of another person without sufficient justification shall be liable to pay a fine or be sentenced to a term of up to one year’s imprisonment. In addition, she sought an order against both defendants requiring them to pay her compensation for non-pecuniary damage under, inter alia, section 26 of the Tort Damages Act No. 50/1993. By a judgment of 14 December 2005 the District Court rejected the applicant’s action on every point. In her appeal to the Supreme Court the applicant dropped her claims under Article 228 (1) and (3) and instead relied on Article 228 (2); she omitted to pursue her claims of violations of the Personal Data Act no. 77/2000 and the Telecommunications Act no. 81/2003 which had been rejected by the District Court; otherwise she maintained her claims before the latter. On 1 June 2006, the Supreme Court upheld the District Court’s judgment, giving the following reasoning: “III As is stated above, on 30 September 2005 the appellant had an injunction imposed on the publication by the defendant, 365-prentmiðlar ehf., “of the injunction plaintiff’s private materials in the newspaper Fréttablaðið or in other media owned by the injunction respondent, in part or in their entirety, through direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the injunction plaintiff is the sender or the recipient, or other such personal private documents of the plaintiff which the defendant had in its keeping. Following this, she brought a legal action by a writ of summons issued by the president of the Reykjavík District Court on 6 October 2005, the case being registered on 11 October 2005. In the writ issued by the District Court, the plaintiff made the demand that the injunction be confirmed, and also that the court confirmed the decision by the District Commissioner to seize materials in the keeping of the defendant, 365-prentmiðlar ehf. No demand was made, on the other hand, regarding the rights in respect of which the appellant had sought temporary protection under the injunction, nor that the aforementioned materials be handed over to her. In this respect, the appellant’s demands before the Supreme Court, which are similar, are at variance with the rule of the second paragraph of Article 36 of the Act No. 31/1990, which states that a court judgment confirming both an injunction and the rights which it is designed to protect are to be sought in one and the same action. Nevertheless, this flaw in the plaintiff’s claim is not sufficient, in itself, to result in the dismissal of the case. On the other hand, the plaintiff must content herself with the fact that in this case, the Court’s resolution will extend solely to whether the formal and material conditions for confirming the injunction obtain. As has been stated above, the plaintiff applied, in her request for an injunction, to have the defendant, 365-prentmiðlar ehf., prevented from publishing matter from unspecified private materials of hers, in their entirety or in part, and irrespective of whether this were done through direct or indirect quotation. Even though the plaintiff sought to define the content of her demand more precisely by stating that this applied to e-mails which she had either sent or received, and other similar personal private documents, no precise statement was made as to whether her demand covered all matters appearing in these materials, irrespective of whether they were generally known or corroborated by other available sources. No distinction was made in her demand between materials originating from the appellant herself or directed to her by those who sent her messages, and materials which had nothing to do with her but nevertheless had come into her possession. No further explanation was given, in the appellant’s injunction request, of what was meant by the words “other such personal private documents,” and no evidence has been revealed to suggest that such documents came into the possession of the defendant, 365-prentmiðlar ehf. No attempt was made to define in further detail what matters these documents were considered to refer to. Under the circumstances, it was not possible to impose an injunction which it would be possible to maintain, in terms of its content, under the rules of section 32 of the Act No. 31/1990 unless, as appropriate, the appellant had specified her demand in further detail at the time when the injunction was imposed and it came to light what materials this defendant had in its possession (see the second paragraph of section 31 of the same Act). The appellant’s request for an injunction was thus both too broad and too indefinite for it to be possible to grant it. In the light of these considerations, the Court has no alternative but to reject the appellant’s demand that it confirm the injunction. According to the established facts of the case, the District Commissioner has held in his cusotdy the materials that were removed from the keeping of the defendant, 365-prentmiðlar ehf., when the injunction was imposed (see the second paragraph of section 25 of the Act No. 31/1990). Under Section VI of the same Act, it is not possible to seek a separate judgment confirming such a measure taken when an injunction is imposed: a ruling on the lawfulness of such a measure is to be made in connection with the validation of the measure as a whole. The appellant has not submitted any claim in this case for the Court to adjudicate on her right to have these materials handed over to her from the keeping of the District Commissioner. The question therefore cannot be entertained further in this case. IV Before the District Court, the appellant demanded that the defendant, K.J., be punished for violations of Article 228 of the General Penal Code. In the writ of summons it was stated that the defendant had violated this provision by obtaining access to the appellant’s private materials, which had been stored in machine-readable form, by trickery or another similar unlawful method, and pried into their contents. This description in the writ of summons accords with the provision of the first paragraph of Article 228, which prescribes punishment for such conduct; that provision lists letters and other materials containing the private affairs of another person. Before the Supreme Court, the appellant has dropped her demand for punishment under the first and third paragraphs of Article 228. She demands that the defendant be punished under the second paragraph of Article 228, which prescribes punishment for rendering useless, or concealing, the private materials listed in the first paragraph of the same Article. In the writ of summons before the District Court, the defendant’s alleged conduct was not described in such a way that this provision could apply to it and the demand for punishment could be based on it (see item d of the first paragraph of section 80 of the Act No. 91/1991). It follows immediately from this reason that the defendant cannot be punished under the second paragraph of Article 228 of the General Penal Code. The appellant also bases her demand that the defendant, K.J. be punished on Article 229 of the Penal Code, under which any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action, is to be subjected to a fine or up to one year’s imprisonment. In connection with this demand, the Court must resolve the question of whether the coverage in Fréttablaðið concerned the appellant’s private affairs, which were to be found in the aforementioned computer documents, and if so, whether the newspaper disclosed them publicly in the absence of sufficient reason to justify doing so. It has been mentioned above that the coverage in the newspaper was based, to some extent, on correspondence between other persons, which passed to the appellant, and from her to the defendant, 365-prentmiðlar ehf. This correspondence contained nothing at all about the appellant, and the coverage in the newspaper that was based on it therefore did not constitute any violation against her. For the most part, the coverage in the newspaper was based on correspondence between the appellant herself and other persons which was no longer stored in her computer, but had come into the possession of other parties in printed form. Mention has been made above of the subject of that coverage, which involved the planning of charges against the managers of Baugur Group Ltd; the newspaper’s coverage also focussed on e-mail correspondence between the appellant and another person concerning her financial claims against one of the representatives of the company. Taking this into consideration, the Court must concur with the appellant that Fréttablaðið’s writings about her financial affairs concerned her private affairs in the sense of Article 229 of the General Penal Code, as did those parts of these writings which reported on the appellant’s encouragement of, and her other involvement in, plans to bring charges against named individuals. Then there arises the argument by the defendants that there was sufficient reason to justify the publication of coverage that drew on the aforementioned e-mail correspondence and contained, amongst other things, the appellant’s private affairs. In adjudicating on this, the Court must take into consideration the fact that when Fréttablaðið’s coverage appeared, matters connected with a charge concerning alleged criminal conduct by the managers of Baugur Group Ltd had for a long time featured prominently in public discussion in Iceland and been the subject of intense controversy resulting, amongst other things, from a police search of the premises of the company in August 2002 and a charge against some of its managers in July 2005. The newspaper’s coverage contained material that was of public interest and concerned a case that had been the subject of great controversy in Icelandic society. Even though the coverage in the newspaper had included disclosures concerning the appellant’s financial affairs, these affairs were, says the defendant, so closely intertwined with the news material as a whole that it was not possible to distinguish between them. The Court concurs with the defendant that no greater encroachment was made on the appellant’s private life than was unavoidable in a public discussion of a matter that was of concern to the public. Taking all this into consideration, the Court can accept that sufficient reason existed to justify the publication of this coverage by the newspaper. The defendant, K.J., cannot be punished under Article 229 of the General Penal Code. Finally, the appellant demands that the defendants be ordered, jointly, to pay her compensation for non-pecuniary damage amounting to ISK 5,000,000 under Section 26 of the Tort Damages Act, No. 50/1993 (see section 13 of the Act No. 37/1999). The Court reached the conclusion above that the limits of permitted expression were not overstepped in the coverage in Fréttablaðið. As is described in the summing-up in the District Court judgment, this claim has not been presented in such a way as to give occasion for accepting it on other grounds. The defendants must therefore be acquitted of this demand”. On 26 September 2005 another newspaper, DV, went further than other media in its discussion of the dealings between the applicant and the editor of Morgunblaðið, in connection with the reporting on their e-mail correspondence. The applicant brought separate court proceedings against DV’s editors seeking their conviction and sentence under Article 229 of the Penal Code, for having, in their newspaper report, disclosed her private affairs without sufficient reason. The editors argued that the news report in question was of interest and concern to the public in view of the public discussion about the connection between the persons referred to in the report and the Baugur case. At the same time, they pointed out that the applicant was a candidate in the primary round of selection of candidates for the Independence Party for the elections to the Reykjavík City Council, and that Styrmir Gunnarsson had been an influential figure in the Independence Party and Icelandic politics in general for many decades. When such persons were connected by particular bonds at the same time as they were working for the advancement of a matter in which they were interested, in order to promote justice, as they saw it, it was important for the normal formation of opinion that the public be allowed to know about the connections that existed between the persons in question. The Reykjavík District Court rejected these arguments by a judgment of 8 December 2006, and convicted both editors of a violation of the applicant’s rights under Article 229 of the Penal Code and sentenced them each to a fine of ISK 150,000 and to pay her ISK 500,000 in compensation for non-pecuniary damage. On an appeal by the editors, the Supreme Court, by a judgment of 4 October 2007, upheld the District Court judgment. Articles 228 and 229 of the General Penal Code, No. 19/1940 may be found in its Chapter XXV on “Defamation and Offences against the Inviolability of Private Life”. These provisions read: Article 228 “Any person who pries into letters, documents, diaries or other comparable materials containing information about another person’s private affairs, having gained access to the materials by trickery, opened letters, entered a locked container or employed another similar method, shall be liable to a fine or up to one year’s imprisonment. The same punishment shall apply to a person who unlawfully obtains access to other persons’ data or programs stored in a computerised form. The same punishment shall apply to the destruction or concealment of the private materials referred to in the first paragraph of this Article. Any person who pries into containers belonging to another person without sufficient reason shall be liable to up to three months’ imprisonment.” Article 229 “Any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action shall be liable to a fine or up to one year’s imprisonment.” Section 26 of the Tort Damages Act, No. 50/1993 read: Article 26 “A person who a. intentionally, or through gross negligence, causes bodily harm or b. is responsible for an unlawful act of malice against the freedom, peace, honour or person of another person may be made to pay compensation for non-financial damage to the person against whom the offence was committed. A person who, intentionally or through gross negligence, causes the death of another person, may be made to pay the spouse, children or parents of that person compensation for non-financial damage.” The applicant drew attention to section 47(5) of the Telecommunications Act, no. 81/2003. Chapter IX on the protection of personal data and the sanctity of private life, read: “Any person who by coincidence, mistake or without special authorisation receives telegrams, pictures or other telecommunicated signs or symbols, or listens to telephone conversations may not write down any such material or use them in any manner. Additionally, he should notify the sender that data were incorrectly received by him. It is obligatory to exercise the utmost confidentiality in such instances” According to section 74 violations of the Act were punishable by fines or imprisonment. The applicant also pointed to sections 5 and 7 of the Act on the Protection of Privacy as regards the Processing of Personal Data, no. 77/2000.