CASE OF ILTALEHTI AND KARHUVAARA v. FINLAND
Violation of Art. 10;No violation of Art. 6-1
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant company is based in Helsinki. The second applicant was born in 1954 and lives in Helsinki. The applicant company publishes a nationwide newspaper called Iltalehti and the second applicant is the editor-in-chief of that newspaper. 6. On 4 December 1996 A., the National Conciliator (valtakunnansovittelija, riksförlikningsmannen) at the time, and B., his female friend, entered late at night A.'s home where his wife was present. The situation escalated, the police were called and the incident, which subsequently involved also A.'s grown-up children, led to A.'s arrest. Following this incident, criminal charges were brought against both A. and B. on 18 December 1996. On 16 January 1997 the Helsinki District Court (käräjäoikeus, tingsrätten) sentenced A. to a four-month conditional prison sentence for resisting arrest and for criminal damage (vahingonteko, skadegörelse), and B. to a fine for assault. On 17 January 1997 the Council of State (valtioneuvosto, statsrådet) dismissed A. from his post as National Conciliator. On 25 June 1998 the Appeal Court (hovioikeus, hovrätten) upheld the judgment with respect to B. As regards A., the case was discontinued as he had died on 14 May 1998. On 15 December 1998 the Supreme Court (korkein oikeus, högsta domstolen) refused B. leave to appeal. 7. On 17 January 1997, one day after the Helsinki District Court judgment, the Iltalehti newspaper published an article about A. and B. with a title “A. defends fiercely his post”. The article focused mainly on A.'s conviction but in the caption to B.'s picture, her name, conviction and the fact that she was A.'s female friend were mentioned. Prior to this article, the identity of B. had been revealed at least in a Finnish magazine on 7 January 1997 (see Tuomela and others v. Finland, no. 25711/04, 6 April 2010). 8. In the spring of 1997 A. and B. requested that criminal investigations be conducted against journalists who had written about the incident on 4 December 1996 and the circumstances surrounding it. On an unspecified date they made such a request with respect to the second applicant, claiming that the article published in Iltalehti had invaded B.'s privacy. Investigations started in respect of the second applicant on 20 April 1997. 9. On 14 March 2000 the public prosecutor brought charges under chapter 27, section 3(a) of the Penal Code against the second applicant in Vantaa District Court. B. concurred with the charges brought by the public prosecutor and pursued a compensation claim against both applicants, which was joined to the criminal charges. The applicant company was summoned on 10 April 2000. 10. On 8 November 2002 the court, after having held an oral hearing on 4 November 2002, first decided to declare all parts of the case file secret for ten years except for the applicable legal provisions, the conclusions and the summary of the case. Additionally, the identity of B. was not to be revealed in the public parts of the case file. As to the merits of the case, the court sentenced the second applicant to pay twenty day-fines, amounting to 2,040 euros (EUR), for invasion of B.'s private life. Moreover, the applicants were jointly ordered to pay B. EUR 10,000 plus interest for non-pecuniary damage as well as her costs and expenses. 11. The District Court found that the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that the national television broadcast on 23 January 1997, in which B.'s name had been mentioned twice in the context of an interview with A., had invaded her private life. B. did not hold such a position in society that the exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code was applicable. The fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to A.'s dismissal from his post as National Conciliator did not justify revealing her identity. Nor was B.'s conviction of a kind that would have justified revealing her identity. The applicants, therefore, had had no right to reveal B.'s name or to publish her picture. As to the intent, the District Court found that invasion of private life was punishable only if intent could be shown. As the second applicant had not prevented the invasion of B.'s private life, this omission fulfilled the intent criteria. 12. By letter dated 9 December 2002 the applicants appealed to the Helsinki Appeal Court, claiming, inter alia, that the provision of the Penal Code in question did not define with sufficient clarity which acts fell within its scope, and that a disclosure of a convicted person's name could not be considered as falling within the scope of private life. Moreover, the lack of evidence was used to the detriment of the second applicant. 13. On 12 October 2004 the Appeal Court, without holding an oral hearing, partly upheld the District Court judgment. The court balanced the right to freedom of expression against the protection of private life in the light of the Court's case-law. It found that, according to the preparatory works and the national and the Court's case-law, the facts mentioned in the articles were of a kind to which the protection of private life typically applied. The Supreme Court had already found in 2002 that B. was not a public figure, and the fact that she was a friend of such a person and that she had been involved in the incident that subsequently led to the dismissal of A. from his post as National Conciliator did not justify revealing her identity. However, since the convictions of A. and B. were closely linked in this case, B.'s name and conviction could lawfully have been mentioned. Nevertheless, the publishing of a big picture of B. was not necessary and therefore invaded her privacy. As to the intent, the omissions of the second applicant could not be regarded as proving his intent to invade B.'s privacy and, consequently, the charges against him were dismissed. He was also exonerated from paying B. non-pecuniary damages as well as her costs and expenses. The non-pecuniary damages payable by the applicant company were lowered to EUR 5,000. In total the applicant company paid EUR 14,374.47 as compensation. 14. By letter dated 13 December 2004 the applicant company applied for leave to appeal to the Supreme Court, reiterating the grounds already presented before the Appeal Court. Moreover, it claimed that, in declaring that the case file was to remain secret, the Appeal Court had not given any reasons which would constitute sufficient grounds for the measure, that the length of the proceedings had exceeded a reasonable time, and that the restrictions on freedom of expression were neither necessary nor justified in this case. 15. On 15 August 2005 the Supreme Court refused the applicant company leave to appeal. 16. The relevant domestic legislation and practice are outlined in the Court's judgment in Flinkkilä and others v. Finland (no. 25576/04, §§ 19-44, 6 April 2010). 17. The relevant international materials are outlined in the Court's judgment in Flinkkilä and others v. Finland (cited above, §§ 45-47).