CASE OF OJALA AND ETUKENO OY v. FINLAND
Preliminary objection partially allowed (Article 34 - Victim);Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
5. The first applicant was born in 1952 and lives in Helsinki. The applicant company has its seat in Helsinki. 6. The applicants, a publisher and a publishing company, wrote and published, together with the former girlfriend of the Prime Minister at the time, an autobiographical book about her relationship with the Prime Minister. The book described a period of nine months in their lives from the point of view of the girlfriend, a single mother. The Prime Minister had earlier divorced his wife. The book described the dating couple’s life and their intimate interaction. The book was published on 19 February 2007. The Prime Minister held office from June 2003 to June 2010 when he stepped down. 7. On 5 October 2007 the public prosecutor brought charges under Chapter 24, section 8, of the Penal Code against the first applicant and the girlfriend for having disclosed information about the Prime Minister’s private life (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet). He also requested that the proceeds of the crime received by the applicant company be ordered forfeit to the State in accordance with Chapter 10, section 2, of the Penal Code. The Prime Minister concurred with the charges brought by the public prosecutor against the first applicant. He also pursued a compensation claim against the first applicant which was joined to the criminal charges. The girlfriend has lodged a separate application with the Court (see Ruusunen v. Finland, no. 73579/10). 8. On 15 February 2008 the book was withdrawn from sale. 9. On 5 March 2008 the Helsinki District Court (käräjäoikeus, tingsrätten), after having voted, dismissed the charges against the first applicant and rejected the request that the proceeds of the crime received by the applicant company be ordered forfeit to the State. It found that the book disclosed a lot of information about the Prime Minister’s private life but that he had already widely disclosed information about his family and habits as well as about his relationship with the girlfriend. Even though he himself had published an autobiography in 2005, had given several interviews, ran a blog and even permitted photographs to be taken at his home, he was known as a politician who strictly controlled his public image. The book also contained some information which had not previously been disclosed to the public. In this respect the court found that these new details only completed the information the Prime Minister had disclosed earlier. It was never suggested that the facts disclosed were not true. The book covered a period of nine months in the girlfriend’s and the Prime Minister’s private life. The court found that the girlfriend had the right to recount her private life. She also described the Prime Minister, his actions and family in a compassionate manner. The court found that, even though the information disclosed in the book had no direct relevance to the Prime Minister’s political functions or his hierarchical position in the State, it had relevance as far as the Prime Minister’s person was concerned. The Constitution required that ministers were “known to be honest and competent”. Moreover, the book described a situation in which two different realities of present day Finnish society met: a wealthy party leader and Prime Minister on the one hand, and a single mother with everyday money problems on the other hand. The court found that the fact that the girlfriend was writing about her life and her relationship with one of the highest authorities in the country did not restrict but in fact widened her freedom of expression. When weighing the freedom of expression against the protection of private life, the court found that the need to resort to criminal liability decreased when the disclosed information became more widely known. Criminal liability was the last resort in guiding human behaviour and its use had to be proportionate. The court could therefore not hold that the publication of the applicants’ book was a criminal act. Moreover, as the first applicant had obtained an opinion from a lawyer before publishing the book, he could not be regarded as having acted with intent and could not therefore be considered as a perpetrator. 10. By letter dated 18 April 2008 the public prosecutor appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Prime Minister also appealed. 11. On 10 February 2009 the Helsinki Appeal Court convicted the first applicant for disseminating information violating personal privacy and sentenced him to 60 day-fines, in total 840 euros. He was ordered to pay the Prime Minister 1,000 euros plus interest for non-pecuniary damage and 9,344 euros plus interest for his costs and expenses before the District Court and the Appeal Court. The proceeds of the crime, 4,260 euros, were ordered forfeit to the State. The applicant company was to receive 4,000 euros as compensation for its costs and expenses before the District Court. The court found that the passages in the book concerning the Prime Minister’s intimate dating and his children’s feelings and behaviour unnecessarily violated the core areas of his protected private life. He had not previously disclosed these details of his private life in the media. The fact that he had disclosed some parts of his private life, the protection of which was, due to his status, much narrower than a private person’s, did not mean that he could not benefit at all from any protection of his private life. He had thus not waived his right to the protection of private life, nor implicitly consented to the disclosure of information concerning details of his private life. Even though the girlfriend had the right to write about her private life, disclosure of intimate details of another person’s private life always required his or her consent. The aim of the applicants’ book had been to discuss matters of private life and it had no relevance to the Prime Minister’s political functions or his hierarchical position in the State. Nor had it any relevance to the assessment of his personal qualities, such as any lack of honesty and judgment, as the relationship fell within the core areas of his private life and had no relevance to his position as Prime Minister. Moreover, the first applicant could be held as a perpetrator even though he had obtained a legal opinion about the book before its publication. His acts had been intentional. 12. By letter dated 14 April 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the court establish a precedent in the case as the court had not yet in its case-law assessed freedom of expression in the context of an autobiography. 13. On 11 June 2009 the Supreme Court granted the applicants leave to appeal. 14. On 16 June 2010 the Supreme Court, after having held an oral hearing, upheld the Appeal Court’s conviction but quashed the forfeiture in respect of the first applicant and reduced the costs and expenses to be paid to the Prime Minister for the proceedings before the District Court and the Appeal Court to 6,000 euros plus interest. The first applicant was ordered to pay the Prime Minister 4,500 euros plus interest for his costs and expenses before the Supreme Court. The applicant company was to receive 2,000 euros as compensation for its costs and expenses before that court. In particular, by referring extensively to the Court’s case-law, the Supreme Court gave a more narrow scope to the Prime Minister’s private life than the Appeal Court. The court found that information about the Prime Minister’s sex life and intimate events and his children’s feelings and behaviour had not been disclosed to the public before. The fact that some details of his private life had been disclosed before did not mean that they could not fall within the scope of criminal liability under Chapter 24, section 8, of the Penal Code. The Prime Minister had not waived his right to protection of private life in these respects, nor had he given his consent to their publication by consenting to the use of his photograph on the cover of the book. The court considered, contrary to the Appeal Court, that the information about how and when the Prime Minister had met the girlfriend and how quickly their relationship had developed had had relevance to general public discussion as these issues had raised the question of whether in this respect he had been dishonest and lacked judgment. Also the information concerning the great differences in the standard of living between the girlfriend and the Prime Minister, his lifestyle, the data protection concerns and the protection of the highest political authorities in general had had relevance to general public discussion. The court found also that disclosure of information about the Prime Minister’s children was not conducive to causing him damage, suffering and contempt as the girlfriend had only given her own interpretation of the children’s attitudes. However, the only references which, according to the court, had illegally disclosed information about the Prime Minister’s private life were the information and hints about the sex life and intimate events between the girlfriend and the Prime Minister. The court enumerated in particular seven parts of the book which contained information about the start of the sex life in the beginning of their relationship, descriptions of their brief and passionate intimate moments as well as giving massages to each other, and accounts of their sexual intercourse. The court found that such information and hints fell within the core area of private life and their unauthorised publication was conducive of causing the Prime Minister suffering and contempt. It was thus necessary to restrict the applicants’ freedom of expression in this respect in order to protect the Prime Minister’s private life.