CASE OF ÓLAFSSON v. ICELAND
Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano
5. The applicant was born in 1965 and lives in Reykjavik. At the material time he was an editor of the web-based media site Pressan. 6. On 2 November 2010 two adult sisters published an article and a letter on their website encouraging people to study the background of candidates in the forthcoming Constitutional Assembly elections. In particular, the sisters warned against A, a relative of theirs, who was standing for election. In the letter they alleged that A had sexually abused them when they were children. The sisters had previously sent the letter to their relatives, the police and the child protection services. For some unknown reason, the police had not instigated an investigation. 7. On 7 November 2010, Pressan published an article about the sisters’ allegations. The article was based on an interview with one of the sisters and on the letter posted on their website. A was also contacted and his response, in which he denied the allegations, as well as his statement that he would not make any further remarks on the matter, were reported in the article. Pictures of the sisters were published with the article. 8. On 8 November 2010 Pressan published an article about comments made by A to a newspaper where he rejected all the allegations and threatened Pressan with a lawsuit for being the first to publish the allegations. Furthermore, the article contained comments from one of the sisters. Pictures of one of the sisters and of A were published with the article. 9. On 27 January 2011 Pressan published an article about the sisters’ having received a letter from A’s lawyer offering to settle the matter, failing which A would bring defamation proceedings against them, and about the sisters welcoming the opportunity to prove their allegations in court. The article was based on an interview with the sisters and statements on their website. A’s rejection of the allegations was also included in the article. Pictures of the sisters were published with the article. 10. On 22 and 23 February and 30 May 2011, Pressan published further articles about the matter, based on the sisters’ statements on their website and in other media interviews, on A’ s comments in other media and on A’s daughter’s comments in a television interview. Pictures of the sisters were published with all the articles. 11. Other media also published articles and interviews with the sisters. 12. In the meantime, on 10 April 2011, A lodged defamation proceedings before the Reykjavík District Court against the applicant and requested that the following statements be declared null and void: A. “Sisters: We will not keep quiet while a child abuser stands for election to the Constitutional Assembly” B: “We cannot sit quietly by while a child abuser stands for election to the Constitutional Assembly” C: “I do not know whether our actions are legal, however that is a secondary point. The man is dangerous and on the loose” D: “The sisters will not be silenced by [A’s] daughter – Child abuse is not the private affair of his family” E: “Child abuse is never a private affair that the family of child abusers can undertake to solve. Child abuse is a crime” F: “Child abusers should not be allowed to hide – Forgiveness cannot entail codependency”. 13. According to Section 15, subsection 3, of the Printing Act (no. 57/1956, Lög um prentrétt) the publisher or editor is liable for the publication if no author is identified. A argued that responsibility for the statements lay with the applicant as the editor of Pressan by virtue of Section 15 of the Printing Act, applied by analogy, since the author of the articles was not identified. 14. During the proceedings before the District Court, B, a journalist, was identified as the author of the articles. He gave a statement before the District Court, but was not involved further in the proceedings. B stated that he had contacted A for comments before publishing all the articles, but he had been unsuccessful after publishing the first article. He also stated that he had tried to establish the sisters’ credibility and the truthfulness of the allegations by interviewing the sisters, A’s son, the police, one of the sisters’ employers, another alleged victim and other people mentioned by the sisters in their writings, who could confirm that the allegations were not appearing for the first time because of A’s candidacy, but had been known to the family and the police for years. B had also tried to contact the Child Protection Services, without success. 15. Before the District Court, the sisters stated that they had been quoted correctly in Pressan and they had approved the publishing of their statements. Furthermore, they said that A had not initiated defamation proceedings against them. 16. By judgment of 22 February 2012 the District Court found in favour of the applicant. 17. As regards the issue of legality, the District Court came to the conclusion that Section 15 of the Printing Act did not apply to material published solely on the internet and that section 15, subsection 3, could not be applied by analogy in the case. However, the District Court stated that a supervisory obligation was placed on editors of web media, where articles were published without identifying the authors, and that the editor was obliged to ensure that material published on web-based media did not cause others harm or interfere with a person’s private life. Therefore, the District Court rejected the applicant’s claim that the case was wrongly directed against him. 18. As regards the merits of the case, the judgment contained the following reasons: “The impugned statements were published on [Pressan] on 7 November 2010 after [A] had, along with about 500 people, declared his candidacy for the Constitutional Assembly. It was a gathering of 25 elected members, established by law by Parliament, which would prepare a proposal for a new constitution. There would be general elections, where the same rules about eligibility and the right to vote applied as in the Parliamentary election”... When the statements in sections A-C are compared to the sisters’ writings on their website on 2 November 2010, the court has to agree with [the applicant] that both the headline in section A and the statements in sections B and C are verbatim from their letter. [...] Furthermore, it cannot be overlooked that the sisters’ allegations were not emerging for the first time because of [A’s] candidacy; they had been proclaimed for at least a few years and were known to many, including the police. [The applicant] was therefore not publishing allegations that were being directed against [A] for the first time, but disseminating further allegations regarding offences that had emerged long before. [The applicant’s] arguments about the public having the right to be informed about the candidates in public elections cannot be ignored. By introducing themselves publicly to gain voters’ confidence and to persuade people to vote for them, [candidates] in a way become public persons and cannot expect all media coverage about them to be as positive as their own. Disputes, resolved and unresolved, regarding their earlier behaviour are matters to which one can expect attention to be drawn. By competing for voters’ attention, candidates usually undertake to be heavily criticised and have to tolerate this up to a point, although that point should be determined on a case-by-case basis. [The applicant] did not present the sisters’ allegations as his own, he just disseminated them further. Therefore, he will not be held accountable for the statements which are directly quoted from the sisters, which the latter have confirmed before the court to be theirs. The court does not agree with [A] that [the applicant] went beyond the limits of his freedom of expression under Article 73 of the Constitution. ... The statements in sections D and E were published on 23 February 2011 when the elections for the Constitutional Assembly were over. [A’s] daughter had discussed the sisters’ writings about her father in a television interview and declared, inter alia, that he was not a public person and that allegations about child abuse did not belong in the media. The sisters reacted to this criticism on their website and then [Pressan] published their reactions. [...] No new discussions about [A’s] case were initiated by the sisters this time, their writings were by way of reply. The statement in section D that appeared as a headline on [Pressan] quotes the sisters’ replies but is partly rephrased. The statement in section E published in an article on [Pressan] is mostly directly quoted. However, this statement can be understood as a statement by the media itself. Even though the statement is not directly quoted, it is of a general nature and refers to child abusers in general. The sisters have also testified before the court that they consider that they have been correctly quoted. So the court concludes that [the applicant] did not go beyond the limit of the freedom of expression guaranteed in Article 73 of the Constitution, with the statements in sections D and E.” 19. On 1 August 2012 A appealed to the Supreme Court against the District Court’s judgment. 20. By a judgment of 21 February 2013 the Supreme Court partly overturned the District Court’s judgment and found defamatory the statements in sections A, B, D and part of the statement in section C, consisting of insinuations that A was guilty of having abused children, and ordered the applicant to pay, under the Tort Act, 200,000 Icelandic Krónur (ISK) (approximately 1,600 euros (EUR)) for non-pecuniary damage, plus interest in compensation and ISK 800,000 (approximately 6,500 EUR) for A’s legal costs before the District Court and Supreme Court. Under Article 241 of the Penal Code the statements were declared null and void. 21. As regards the issue of legality, the Supreme Court noted that the author of the articles had been identified and that the applicant had confirmed that he had agreed to the publication of the articles. The Supreme Court also confirmed that Section 15 of the Printing Act did not apply to material solely published on the internet. Furthermore, the Supreme Court stated that Section 15, subsection 3, of the Printing Act could not be applied by analogy to the case. However, the applicant had a supervisory obligation which entailed that he should conduct his editorial duties in such a way that the published material would not harm anyone by being defamatory. The Supreme Court referred in this respect to a Supreme Court judgment of 24 November 2011. Therefore, the Supreme Court rejected the applicant’s claim about the case being wrongly directed against him. 22. As to the merits of the case, the judgment contained, inter alia, the following reasons: “The court can agree with [the applicant] that candidates for assignments in the public interest have to endure a certain amount of public discussion of their ability and skills and attributes and whether or not they can be trusted to bear this kind of responsibility. However, this cannot justify that [A], without any further or additional information, was accused of this criminal act in the media, [act] punishable by the Penal Code. Here it has been taken into account that [A] has not been found guilty of the conduct nor has he been under investigation because of it. It does not change anything that the journalist discussed the matter with [A] and others, who claimed they could testify about the incident, while working on the story and [A] rejected the allegations. In the light of the aforementioned, the limitation on the freedom of expression had to be justified in accordance with Article 73(2) of the Constitution.”...