CASE OF KARHUVAARA AND ILTALEHTI v. FINLAND
Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. The first applicant was born in 1954 and lives in Helsinki, Finland. The second applicant (“the applicant company”) is a limited liability company based in Helsinki. 8. The applicant company publishes a newspaper called Iltalehti which has a circulation of approximately 120,000. On 31 October 1996 it published an article on a criminal trial concerning the drunken and disorderly behaviour, including an assault on a police officer, of Mr A., a lawyer practising in Seinäjoki. The article bore the title “His wife [is] the chairperson of the parliamentary Committee for Education and Culture – Lawyer from Seinäjoki hits policeman in restaurant” (“Vaimo eduskunnan sivistysvaliokunnan puheenjohtaja – Seinäjokelainen asianajaja iski poliisia ravintolassa”). Follow-up articles were published on 21 November and 10 December 1996 concerning the verdict whereby the defendant was convicted and sentenced to six months’ suspended imprisonment. It was reported that the defendant was the husband of Mrs A., a member of the Finnish parliament and the chairperson of its Committee for Education and Culture. The headline on 21 November read “... Husband of member of parliament hits policeman in restaurant” (“... Kansanedustajan aviomies löi poliisia ravintolassa”). The heading on 10 December 1996 read “... Husband of member of parliament receives harsh sentence for violence in restaurant” (“... Kansanedustajan miehelle kova tuomio ravintolassa riehumisesta”). 9. The trial of Mr A. had been widely publicised and discussed locally, and the role of Mrs A. – who was in no way involved in the criminal proceedings – had become the subject of, inter alia, political satire in a programme (“Iltalypsy”) broadcast on the main national television channel. 10. In April 1997 Mrs A., who did not dispute the facts as presented by Iltalehti, instituted proceedings against the applicants and two of the journalists involved on the grounds that the reporting by Iltalehti had been libellous and had invaded her privacy. She requested that the respondents be punished for invasion of privacy and defamation, and claimed compensation for non-pecuniary damage caused by the articles. Moreover, she relied on section 15 of the Parliament Act then in force (valtiopäiväjärjestys, riksdagsordningen) which stipulated that members of parliament as well as parliamentary officials were to enjoy special protection in the performance of their duties and for the duration of parliamentary sessions. Criminal offences, in the form of words or physical acts, that violated the rights of members of parliament or officials while Parliament was in session, or subsequent physical violence, were to be regarded as being committed in particularly aggravating circumstances. According to Mrs A., this provision was applicable both in relation to the criminal charges and in determining the amount of damages in her case. She argued that the articles had caused her particular suffering as she had been publicly associated with a criminal act that was in no way connected to her person or function as member of parliament. 11. As editor-in-chief of Iltalehti the first applicant, Mr Karhuvaara, admitted to being superficially aware of the type of material published but denied any detailed prior knowledge of the specific material in question. According to section 32 of the Freedom of the Press Act then in force (painovapauslaki, tryckfrihetslag; 1/1919, replaced by Act no. 460/2003 in 2004), an editor-in-chief was ultimately responsible for any original material published in his newspaper or periodical, regardless of whether he had in fact been aware of its contents. The defendants also argued that they had only mentioned in their articles that Mrs A. was married to Mr A., a fact which was not denied by Mrs A. She had not been otherwise mentioned in the articles. Moreover, the case had already been reported locally and their article contained no new information as such. They also argued that a member of parliament, as a public political figure, must tolerate more from the media than an “average citizen” and that it was particularly disturbing that a member of parliament was trying to limit the defendants’ freedom of expression. 12. On 27 March 1998 the Vantaa District Court (käräjäoikeus, tingsrätten) convicted the first applicant and the two other journalists on one count of invasion of privacy under particularly aggravating circumstances within the meaning of section 15 of the Parliament Act. The first applicant was ordered to pay eighty day-fines, amounting to 47,360 Finnish markkas (FIM) (approximately 7,965 euros (EUR)). The two other journalists were both ordered to pay fines amounting to approximately EUR 840. In addition, all the defendants, including both applicants, were ordered to pay damages as requested by the plaintiff (jointly and severally with a co-defendant, FIM 75,000 with interest from 31 October 1996, and jointly and severally with another co-defendant, FIM 100,000 with interest on FIM 50,000 from 21 November 1996 and with interest on FIM 50,000 from 10 December 1996), namely,. a total of FIM 175,000 (approximately EUR 29,400). All the defendants were ordered to reimburse Mrs A. jointly and severally in respect of her legal expenses of FIM 72,109 (EUR 12,128) with interest from 27 April 1998. The defamation charges were dropped. 13. The District Court found that, as a whole, the banner headlines, the front pages and the articles themselves were published with the purpose of drawing the readers’ attention principally to Mr A.’s marital relationship with Mrs A. and not with the purpose of depicting the events as such. It further found that the highlighted publication of Mrs A.’s name, picture and professional status was in no way necessary in order to report on the criminal trial of Mr A. It acknowledged that the protection of the private life of Mrs A., as a member of parliament, was narrower than that of other persons, but only in so far as the matters in question were connected to her public functions and there was a public interest justifying their publication. The fact that the conviction of the spouse of a politician could affect people’s voting intentions did not in itself render the matter of public interest such as to justify the publication. The District Court held that the fact that the actions of the plaintiff’s husband and the criminal proceedings against him had been well known in their home district and the fact that the local newspapers had been reporting the matter had no bearing on the defendants’ liability. According to the judgment, it was the nationwide publicity accorded by Iltalehti and the resultant infringement of the plaintiff’s protected private domain that had essentially constituted the criminal offence in question. It further held that, although the reasons underlying section 15 of the Parliament Act could be regarded as outdated, it was a mandatory provision, leading to conviction for an offence categorised as aggravated. As to the determination of the amount of compensation for suffering, the District Court noted that the plaintiff herself, especially as she was also a doctor and thus an expert, was best placed to assess her own situation and the damage she had sustained. 14. On 3 December 1998 the Helsinki Court of Appeal (hovioikeus, hovrätten) dismissed the joint appeal of the defendants and upheld the District Court’s judgment without any observations on the merits of the case, save for a minor correction of the lower court’s statement as to the alleged unlawful benefit accruing to the publishers. The Court of Appeal added that regardless of this correction the damages awarded to the plaintiff were not to be considered excessive. 15. On 25 May 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the defendants leave to appeal. 16. Section 8(1) (969/1995) of the 1919 Constitution (Suomen hallitusmuoto, regeringsformen för Finland), as in force at the relevant time, stipulated that the private life, honour and home of every person was to be protected. This provision corresponds to section 10 of the 2000 Constitution (perustuslaki, grundlagen; Act no. 731/1999), which came into force on 1 March 2000. 17. Section 10(1) (969/1995) of the 1919 Constitution, as in force at the relevant time, afforded everyone the right to freedom of expression. Freedom of expression entailed the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. This provision corresponds to Article 12 of the 2000 Constitution. 18. Section 15(1) of the Parliament Act (valtiopäiväjärjestys, riksdagsordningen), as in force at the relevant time, read as follows: “If a person, either in the course of a parliamentary session or while a member of parliament is travelling to or from Parliament, abuses the said member of parliament by any word or deed, knowing that the person so abused is a member of parliament, or if a person assaults a member of parliament after a parliamentary session because of the manner in which he or she has carried out his or her duties, the fact that the victim of the offence was a member of parliament shall be deemed to be a seriously aggravating circumstance.” This provision was later repealed by the 2000 Constitution (section 131). 19. Chapter 27 (908/1974), section 3a, of the Penal Code (rikoslaki, strafflagen), as in force at the relevant time, read as follows: “A person who unlawfully, through the use of the mass media or in another similar manner, publicly spreads 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.” 20. According to the Government, persons in respect of whom the protection of private life is narrower in scope include public officials, politicians and persons with important positions in the business world (government bill, HE 239/1997, p. 32). 21. Chapter 27, section 3a, of the Penal Code was repealed in 2000 by section 8 of Chapter 24 (531/2000), which reads as follows: “Dissemination of information violating private life: A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of damaging personal reputation and sentenced to a fine or a maximum term of two years’ imprisonment. The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute damage to personal reputation, if it may affect the evaluation of that person’s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.” 22. According to a report by the parliament’s Law Committee (lakivaliokunta, lagutskottet), functions in respect of which the protection of private life is, under paragraph 2, narrower in scope, include political functions, business functions, and public functions or duties. Information on the private life of persons having such functions may be disclosed where the information may affect the assessment of the performance of their duties. Furthermore, the person’s consent to the disclosure of the information is relevant to 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 their private life (see the report of the Law Committee, pp. 4-6). 23. According to section 39 (909/1974) of the 1919 Freedom of the Press Act (as in force at the relevant time), the Tort Liability Act was to be applied to the payment of compensation for damage resulting from the content of printed works. 24. Under the terms of Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; 412/1974), damages may also be awarded for the distress arising from an offence against someone’s liberty, honour or domestic peace or from another comparable offence. 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. 25. Chapter 17, section 6 (571/1948), of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provides that if the issue relates to the quantum of damages and no evidence is available, or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum having regard to what is reasonable. 26. On 11 June 1997 the Supreme Court delivered two judgments relating to articles which had given information on cases of arson. The first judgment (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 other judgment (KKO 1997:81) concerned an article published in a periodical, which was based on the aforementioned newspaper article (see paragraph 26 above) 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.” 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 Supreme Court considered that 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. The Supreme Court further found that 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 publisher and its partners were ordered jointly to pay FIM 100,000 (EUR 16,819) plus interest for the mental suffering caused to the head of the fire department. According to the Supreme Court, 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. It had not been necessary to refer to the complainant’s profession in order to report 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. 28. In another judgment (KKO 1980 II 123), the Supreme Court held as follows (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.”