CASE OF NISKASAARI AND OTAVAMEDIA OY v. FINLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
George Nicolaou;Guido Raimondi;Mikko Puumalainen;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev
6. The first applicant was born in 1952 and lives in Helsinki. The applicant company has its seat in Helsinki. 7. The first applicant is a journalist for a weekly magazine, Seura, which is published by the applicant company. 8. On 16 March 1998 and 19 November 2001 respectively the Finnish national public service broadcasting company broadcast two TV documentaries in its MOT series which concerned mould-infested houses and the protection of forests. They were made by several reporters, including Mr M.B. who was the complainant at the origin of criminal proceedings that were subsequently brought against the first applicant (“the complainant”) (see paragraph 12 below). 9. On 18, 19 and 23 March 2002 the first applicant criticised on two separate internet discussion sites, namely on the “Ylevi” site maintained by the Green League (Vihreä liitto, Gröna förbundet) and the “Journalism” site maintained by Tampere University, the manner in which these two documentaries had been made. He wrote, inter alia, that: “[The complainant] is a fanatic warrior of the faith for whom facts are just in the way. He has indisputably been caught at cold, intentional lying.” “[The complainant] in fact claimed that the house was healthy but that one cheating company doing mould inspections had managed to find some insignificant mould spots because of which a completely unnecessary court case was initiated. ... Contrary to [the complainant’s] assurances, N.N.’s former house was rotten. ... [The complainant] must have known that. He is thus lying cold-bloodedly and intentionally. ... He thus knew that [the expert] lied but he let it happen.” 10. On 31 May 2002 the first applicant published a four-page article in Seura magazine, which is one of the biggest nationwide family magazines in Finland, on similar lines. The article had been approved by a lawyer before publication. The article included passages such as: “[The complainant] claimed that over 10% of the Finnish forest area was already protected and that conservationists demanded that an additional 10-15% of the forest area in Southern Finland should be preserved. These figures are fabricated.... S.S. thus said in [the documentary] the complete opposite of what her research showed and what was stated in her grant application. When I interviewed [the complainant], he admitted that he had known about the grant and the 1993 research. Still he accepted S.S.’s clearly groundless testimony in the documentary.” 11. On 5 July 2002 Seura magazine published a two-page reply in which the reporters who had made the documentaries in question replied to the first applicant’s criticism. In response to this reply, the magazine published a page-long counter-reply by the first applicant. 12. On 21 September 2002 the complainant reported the matter to the police, asking them to investigate whether the first applicant was guilty of defamation when he called him a liar in his writings. By letter dated 16 October 2002 the complainant presented his claim for damages against the applicants. 13. On 15 and 17 November 2002 the applicant company and the first applicant submitted their replies to the police. On 5 December 2002 the first applicant was questioned by the police for the first time. 14. On 23 April 2004 the public prosecutor pressed charges in the Espoo District Court (käräjäoikeus, tingsrätten) against the first applicant for defamation. The complainant concurred with the charges brought by the public prosecutor. The compensation claim presented by him previously on 16 October 2002 was joined to the criminal charges. The applicants claimed that the Espoo District Court was not the appropriate court because the forum norms had changed in January 2004. 15. On 8 June 2005 the Espoo District Court found in an interlocutory decision that it was a competent court to decide the case. Even though the article in question had been written and the decision on its publication had been taken in Helsinki, the magazine had been printed and the consequences of the article had arisen in Espoo. As the internet articles concerned the same matter, the court was competent to examine them too. 16. On 26 January 2007 the Espoo District Court dismissed all charges against the first applicant and the compensation claim directed against the applicants. It found first of all that all the articles should be considered as one matter because they concerned the same topic, irrespective of whether they had been published on internet or in the magazine. Both the first applicant and the complainant had had grounds for their views and they had not said anything that was clearly untrue. The documentaries made by the complainant had provoked public discussion, but they had also provoked harsh criticism on account of the manner in which they were presented. Therefore the threshold for acceptable criticism of the complainant and of his documentaries was higher than usual. As there had been insinuations in the documentaries that some of the expert opinions had been false, the first applicant was allowed to use similar wording vis-à-vis the complainant. 17. By letter dated 26 February 2007 the complainant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten). The Appeal Court held oral hearings on 16 and 17 October and on 27 October 2008. 18. On 30 January 2009 the Appeal Court convicted the first applicant of defamation and sentenced him to 40 day-fines, totalling 240 euros (EUR). He was ordered to pay EUR 2,000 plus interest in damages to the complainant. The applicant company was ordered, together with the first applicant, to pay EUR 4,000 plus interest in damages to the complainant as well as his costs and expenses of EUR 25,500, plus interest, in total. The court found first of all that the Espoo District Court had been the competent court in the matter. As to the merits, the Appeal Court mentioned Article 10 of the Convention and the principles expressed therein as well as adverting to the Court’s case-law and legal literature on Article 10. With reference to the Court’s case-law, it recalled that even if everyone was guaranteed freedom of expression, it was not permitted to defame others or to disseminate false information on anybody. In this respect a journalist had the same responsibility as others. The Appeal Court then found that it had not been proved that the complainant had disseminated wrong information in the documentaries in the manner recounted by the first applicant, except for the misleading information given in the context of the reportage on mould-infested houses which the complainant had failed to rectify. It appeared also from the witness statements that different statistical information existed as far as the conserved forest area in Finland was concerned, such that it could not be said that the figures given by the complainant had been fabricated. The first applicant had thus imparted false information on the complainant and these accusations had been serious. The first applicant had not therefore had strong reasons or probable cause to hold his own accusations to be true. The fact that freedom of expression was guaranteed under Article 12 of the Constitution as well as under Article 10 of the Convention together with the fact that the complainant was also a journalist and that the first applicant had been able to give grounds for his own opinion in the media, did not entitle the first applicant to impart the above-mentioned false information. Nor did the first applicant have the right to call the complainant a liar. On these grounds the first applicant was found guilty of defamation. 19. By letter dated 31 March 2009 the applicants appealed to the Supreme Court (korkein oikeus, högsta domstolen), claiming that all facts had been correct in the article published in Seura magazine. Moreover, during the oral hearing in the Appeal Court, the applicants had not been allowed to put questions to the opposing party’s witnesses, whereas the opposing party had been able to question their witnesses. Also the evidence provided by the applicants had not been adequately taken into account by the Appeal Court and the proceedings had taken place in the wrong forum. 20. On 11 December 2009 the Supreme Court refused the applicants leave to appeal.