CASE OF EERIKAINEN AND OTHERS  v. FINLAND
Violation of Art. 10;Pecuniary and non-pecuniary damage - award
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
7. The first applicant was born in 1946 and lives in Kauvatsa. The second applicant was born in 1942 and was resident in Härmä at the time of his death. 8. The first applicant is a freelance journalist. In 1997 he wrote an article about criminal proceedings which were then pending before the Turunseutu District Court (käräjäoikeus, tingsrätten). Those proceedings were public in nature. A defendant, X, was charged with various counts of tax fraud and aggravated fraud for allegedly deceiving the Social Insurance Institution (kansaneläkelaitos, folkpensionsanstalten) and insurance companies. The article was published in issue no. 6/1997 of the magazine Alibi, and entitled: “It seemed legal, but... a woman entrepreneur cheated to obtain a pension of over 2 million marks?” (In Finnish: Näytti lailliselta, mutta... yrittäjärouva huijasi yli 2 miljoonan eläkkeen?). The article did not mention X’s name. In the magazine’s table of contents, however, her first name was mentioned. The article included a reproduction of an article which had been published eight years previously with two photographs of X. That article, written by the first applicant, had been published in another magazine and mentioned X’s full name and included two photographs of her, one taken inside her home and another in her garden. The article was about a house purchased by the applicant which turned out to be full of rising damp. This situation naturally made her extremely miserable as she had spent her money on an uninhabitable house. 9. In September 1997 X lodged a criminal complaint, and proceedings were instituted against the applicants. On 18 December 1997, however, the Espoo District Court dismissed the charges. X appealed to the Helsinki Court of Appeal (hovioikeus, hovrätten), which upheld the judgment on 1 April 1999. X was ordered to reimburse the applicants’ legal costs. 10. Subsequently, X brought civil proceedings against the applicants before the Espoo District Court. She claimed that the said article had incriminated and insulted her and, in the alternative, that her picture had been published without her consent, causing her mental suffering. She requested compensation for non-pecuniary damage amounting to 250,000 Finnish marks (FIM) (approximately 42,047 euros (EUR)). In the alternative, she claimed compensation for the publication of her picture and non-pecuniary damages amounting to FIM 125,000 (EUR 21,023). She also claimed pecuniary damages amounting to FIM 29,234 (EUR 4,917). In a hearing before the court she claimed that publication of the article and photograph had amounted to an invasion of her privacy. 11. In its judgment of 31 March 1998 the District Court found that, given that X had been only a suspect at the time and the criminal case against her had still been pending, it had been wrongly alleged in the table of contents and in the headline of the article that she had obtained pension payments by fraud. The case thus amounted to defamation, as set out in Chapter 27 of the Penal Code (rikoslaki, strafflagen). The court found that other parts of the article were not defamatory. Under the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), the court ordered the applicants jointly and severally to pay X FIM 80,000 (EUR 13,455) for non-pecuniary damage and FIM 27,554 (EUR 4,634) for pecuniary damage, and to pay her legal costs. Finally, it found that, having regard to the above, there was no need to adjudicate on her second claim. 12. The applicants appealed to the Helsinki Court of Appeal, asserting their right to freedom of expression. X also appealed, requesting that the amount of damages be increased. 13. On 8 December 1999, without holding an oral hearing, the appellate court quashed the judgment, reasoning, inter alia, that: “... It was clear from the text of the article that it concerned a pending public trial. X’s identity was not revealed in the headline, thus she could not be assumed to be guilty of an offence only by reading the headline. Neither was her identity disclosed in the table of contents; to identify her required reading through the article. The text of the article is not defamatory or slanderous on the grounds set out in the District Court’s judgment. Publishing an article about charges brought before a public trial is justified, even though it might cause suffering for the accused. The act did not amount to defamation ... ... the crimes allegedly committed cannot be regarded as minor, taking into account their extent, effects and social importance. An article about this kind of case, and the publication of a photo from which [X] could have been identified, is not a violation of her privacy.” 14. X applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). 15. On 21 November 2000 the Supreme Court granted leave to appeal. On 26 September 2001 it issued its judgment, which became a precedent (KKO 2001:96). The Supreme Court ruled that, in line with the grounds of the Court of Appeal’s judgment, the applicants were not guilty of defamation. It found, however, that by attaching the said illustration (in Finnish: kuvitus; that is by reproducing the old article which included X’s name and photographs), the applicants had violated her right to privacy, and ordered them jointly to pay FIM 20,000 (EUR 3,364) for non-pecuniary damage together with interest from the service of the summonses in 1997 and to reimburse her legal costs. The court reasoned, inter alia, that: “... On the grounds mentioned in the Court of Appeal’s judgment, the Supreme Court considers that [the first and the second applicants] have not committed an act of defamation within the meaning of Chapter 27, Article 1 or 2 of the Penal Code as in force at the time of the act. [see paragraph 13 above] The question thus raised by this case is whether [the first and the second applicants] without a legal right through the use of a mass medium or in another similar manner have publicly spread information, an insinuation or an image depicting the private life of [X] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of Chapter 27, Article 3a, of the Penal Code as in force at the time of the publishing of the article. According to this provision of law, making public [an article that discusses] a person’s actions in public office or function, in business life, in a political or other comparable activity, is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance. As noted in the travaux préparatoires (HE no. 84/1997 vp ...) this is relevant chiefly in domains where decision-making takes place or in which the circumstances in reality may affect the every-day life of several persons or which have relevance of principle. According to the travaux préparatoires, such domains are first and foremost the attendance to a public office or function, business life and political activity. According to the said provision, what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life. The criminal case, which has been the object of the article published in the Alibi magazine, has concerned, inter alia, the question whether [X] in order to obtain an unlawful financial benefit, by concealing that she received her livelihood as an entrepreneur, had misled the Social Insurance Institution and the insurance companies to grant her a disability pension thereby causing them economic loss. The acts mentioned in the charge related to [X’s] actions as an entrepreneur in a relatively small cleaning firm. Although the criminal case concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that there would have been grounds to reproduce, as part of an article and without [X’s] consent, another article that included her name and photograph. Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to [X]. Thus, [the first applicant], who wrote the article in question and intentionally used as an illustration the afore-mentioned earlier published article written by him and the photograph of X in that connection, and [the second applicant], who in his capacity as the magazine’s editor-in-chief approved the publication of the article, have through their acts without a legal right by the use of a mass medium publicly spread information, an insinuation or photograph depicting the private life of [X] which was conducive to causing her damage or suffering. Whether or not the fact that [X] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [the first and the second applicants] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [X’s] identity.” 16. Meanwhile, on 8 May 2000 the Turunseutu District Court convicted X of, inter alia, five offences of tax fraud and two offences of aggravated fraud and sentenced her to an immediate term of one year and ten months’ imprisonment. She was also ordered to pay damages. 17. On 28 June 2002 the Turku Court of Appeal upheld X’s conviction for, inter alia, tax fraud, aggravated fraud and fraud, without amending the sentence. 18. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919), 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 (Act no. 731/1999). 19. 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. 20. 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. 21. Chapter 5, section 6, of the Tort Liability Act stipulates that damages may also be awarded for distress arising from an offence against liberty, honour or domestic harmony or from another comparable offence. 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. 22. Chapter 27, Article 3a, of the Penal Code, as in force at the relevant time, provided that a person who unlawfully, through the use of the mass media or in another similar manner, publicly spread information, an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering, should be convicted of invasion of privacy and sentenced to a maximum term of two years’ imprisonment or to a fine. A publication that discussed a person’s behaviour in public office or function, in professional life, in a political or other comparable activity, was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance. 23. In 2000, Chapter 27, Article 3a, of the Penal Code was replaced by Chapter 24, Article 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. According to the Parliamentary Law Committee’s 2000 Report (lakivaliokunta, lagutskottet; 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. 24. Section 2 of the Public Nature of Court Proceedings Act (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. 25. 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.” 26. In 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.” 27. 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 in view of the fact that the information had been reported in another publication at an earlier stage.” 28. The article published in the periodical had also 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. 29. The Supreme Court’s decision of 25 June 2002 (KKO 2002:55) concerned the broadcasting of the name of a woman who, together with a person in a public position, had been a party to an assault. The court found that the facts discussed in the television programme with regard to the woman 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. 30. 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. 31. In a decision of 19 December 2005 (KKO 2005:136), the Supreme Court noted that an offence is not a private matter of the offender. In principle, however, a person convicted of and sentenced for having committed an offence also enjoys 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 qualifies as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings can 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 impugned article did not include his photo. 32. 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). 33. 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/her position or offence. As regards a minor or an unaccountable person information should be disclosed with restrain (Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he/she is only a suspect or has merely been charged (Article 32). 34. 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.” 35. 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.” 36. The European Federation of Journalists submitted the following. 37. In France and Spain, there is no restriction on publishing pictures of persons subject to pending criminal proceedings, provided that the journalist, according to generally accepted procedure, clearly and explicitly mentions that the person has not yet been found guilty. 38. In Belgium, there is no restriction on pub1ishing the photograph of a person accused of a crime, unless the person himself/herself or the court explicitly expresses his or her wish not to be photographed or not to be published. In practice, publication of names and photos happens daily, with the clear mention that the person is suspected but not guilty. The Declaration of Duties and Rights of Journalists and the Code of Conduct of Journalism also impose an obligation to check the information, to respect privacy, and to correct false information if necessary. 39. Article 8 of the German Press Code provides that the press must respect the private life and intimate sphere of persons. If, however, the private behaviour of a person touches upon public interests, then it may be reported on in individual cases. Care must be taken to ensure that the privacy rights of uninvolved persons are not violated. The press must respect a person’s right to self-determination concerning information about them and guarantee editorial data protection. 40. The United Kingdom Code of Conduct sets out the basic principles of responsible independent journalism and has been the model for numerous other journalist codes. It states, among other things, that a journalist shall strive to ensure that information disseminated is honestly conveyed, accurate and fair and does nothing to intrude into a person’s private life, grief or distress unless justified by overriding public interest considerations. In addition, the Code of Practice of the Press Complaints Commission states that, in reporting on crime, relatives or friends of persons convicted or accused of crime should not generally be identified without their consent, unless they are genuinely relevant to the story. 41. There is no hard and fast rule in the Finnish Guidelines for Journalists. The 2005 Guidelines urge caution and judgment, especially when a case is only at the accusation stage. However, a public figure is less protected than an ordinary person. A politician or a business leader accused of an offence can be identified for a less serious crime. The gravity of the crime is also an obvious relevant factor. The central question is who is a public figure. There have been cases where spouses, girlfriends or boyfriends of public figures have argued that they were not, and won their case in court. Recently following a school massacre the Minister of the Interior disclosed the name of the killer in a live televised press conference, a few hours after the incident. The police also recently published the name and picture of a man accused of (and later convicted of) spreading HIV, as well as the names and pictures of two escaped convicts. The basis of the decision was public security. Many companies have their own code of conduct. According to most of the companies the name of a convicted person can be published if the sentence is two years or more in prison, that is, where the crime is serious. But this is usually restricted if publishing the name may disclose the identity of the victim (child abuse cases, for example,) or if the person convicted is a minor.