LINDBERG v. SWEDEN
Inadmissible
Christos Rozakis
The applicant, Mr Odd F. Lindberg, is a Norwegian national, who was born in 1945 and lives in Sweden. He is represented before the Court by Mr J. Södergren, a lawyer practising in Stockholm. The applicant had been on board the seal hunting vessel M/S Harmoni (“the Harmoni”) during the 1987 season as a freelance journalist, author and photographer. On 3 March 1988 Mr Lindberg applied to the Ministry of Fisheries to be appointed seal hunting inspector for the 1988 season on board the Harmoni. Following his appointment on 9 March 1988 he served on board the Harmoni from 12 March to 11 April 1988, when the vessel returned to its port in Tromsø. Thereafter, and until 20 July 1988, Bladet Tromsø published twenty-six articles on Mr Lindberg’s inspection, including his entire inspection report (of 30 June 1988). In the meantime, by 15 July 1988, the Norwegian Ministry of Fisheries had decided to exempt the report from public disclosure with reference to the nature of the allegations – criminal conduct – and to the need to give the persons named in the report an opportunity to comment. On 18 July 1988 the Ministry was reported to have stated that veterinary experts would consider the controversial Lindberg report. On 20 July the Ministry expressed doubts as to the applicant’s competence and the quality of the report. Mr Lindberg’s report continued to receive a wide coverage in other media as well. On 29 July and 3 August 1988 extensive excerpts from the report were published in Fiskaren, a bi-weekly for fishermen. Over the following months the debate about Mr Lindberg’s report died out until 9 February 1989, when he gave a press conference in Oslo. A film entitled “Seal Mourning” (containing footage shot by Mr Lindberg from the Harmoni) showed certain breaches of the seal hunting regulations. Clips from the film were broadcast by the NRK (Norwegian Broadcasting Corporation) later the same day and the entire film was broadcast by Swedish TV2 on 11 February 1989. During the next days scenes from the film were broadcast by up to twenty broadcasting companies world-wide, including CNN and the British Broadcasting Corporation. On account of various publications of allegations by the applicant to the effect that certain seal hunters had violated the Seal Hunting Regulations issued by the Norwegian Ministry of Fisheries and some instance the Penal Code, the nineteen crew members of Harmoni brought, mostly with success, a series of defamation proceedings against the applicant and a number of media corporations and companies, including Bladet Tromsø and its former editor. In the defamation case against the applicant himself, the Sarpsborg City Court (byrett) held in a judgment of 25 August 1990 that a number of his statements were defamatory and should be declared null and void and ordered him to pay compensation to the nineteen plaintiffs. Leave to appeal was refused by the Appeals Selection Committee of the Norwegian Supreme Court in May 1991. A more detailed account of those proceedings is given here below. On 26 June 1994 he lodged an application (no. 26604/94) with the former European Commission of Human Rights alleging violations of Articles 6, 10 and 13 of the Convention, which the Commission declared inadmissible on 26 February 1997 as having been lodged out of time. The defamation case against Bladet Tromsø and its former editor also became the subject matter of an application (no. 21980/93) lodged under the Convention, in which the newspaper and its former editor disputed the Nord-Troms District Court (herredsrett) findings of 4 March 1992 (against which the Supreme Court had refused leave to appeal on 18 July 1992) that its publication of several statements from the applicant’s report (crew in specific instances “beat to death a female harp seal which was protecting her pup”; “Seals skinned alive”; the applicant was “being beaten up by furious hunters, who also threatened to hit him on the head with a gaff if he did not keep quiet.”) made them liable for defamation and that the statements should be declared null and void: In its Bladet Tromsø and Stensaas v. Norway judgment of 20 May 1999 ([G.C.], no. 21980/93, ECHR 1999-III), the Court, by thirteen votes to four, found that there had been a violation of Article 10 of the Convention with regard to the newspaper and the former editor (see paragraphs 58 to 73 of the judgment and point 1 of the operative provisions). The present application relates to the Swedish courts’ refusal to prevent the enforcement in Sweden (where the applicant lived) of the Sarpsborg City Court’s judgment of 25 August 1990 in the defamation proceedings against the applicant on account of similar or comparable allegations. For a broader view of the factual background of the case complex, the context of the impugned allegations and also details of Norwegian defamation law, the Court refers to paragraphs 8 to 44 of its above-cited judgment. In March 1989 the crew members of the Harmoni had instituted defamation proceedings against Mr Lindberg before the Sarpsborg City Court, referring to statements which he had made about them in respect of the 1987 and 1988 hunting seasons, in his report of 30 June 1988, in a television programme “Antenne 10” broadcast by the Norwegian Broadcasting Corporation on 9 February 1989 and the film broadcast by the Swedish TV2 on 11 February 1989 in its programme “Miljöbilder” (Environment pictures). They sought the mortification of certain statements imputing reprehensible conduct on the part of the crew. The plaintiffs further requested a prohibition against the publication of the report and of film footage taken by the applicant during the seal hunt on the West Ice in 1987 and 1988. By judgment of 25 August 1990 (extending to some 80 pages), the City Court, after holding an oral hearing over six days, found for the applicant with regard to some of the impugned statements but declared five statements in his inspection report null and void under Article 253 § 1 of the Penal Code, as well as two other statements made by him in television programmes: In the report i “Finally, it is my firm opinion that every seal in the hunting area was to be put to death – no matter the cost or risk.” ii “The sharp end of the gaff was forcefully driven into the head of the animal by an intoxicated man.” ii “Some of these people seem to have an excessive, raw lifestyle.” iv “Since I thought the mental health of [Mr. K] was unbalanced (last year I made the same observation reg. this man) I found it best to avoid the man for the rest of the season.” v “When the hunter realises that he has failed – that he is the loosing party – he kills the female... .The hunter always invokes self-defence as an excuse for killing the female–who is able to prove the contrary?” In the TV2 programme vi “Due to the present conditions, it is a tragedy to the seal, to Norway as a nation it is a scandal – that the set of rules, as it is drafted by the Ministry of Fishery, is violated nearly to one hundred percent.” In the NRK programme vii “I often saw these whitecoats, bluebacks also for that matter, being kicked to death or being stamped to death when they came on board.” The City Court further prohibited the applicant from making accessible to the relevant public film footage, where the plaintiffs could be identified, and ordered him to pay to each of them NOK 10,000 in compensation for non-pecuniary damage, plus NOK 3,000 in respect of profits he had obtained through illegal publication of the film, as well as legal costs. The City Court’s reasoning, which went over 30 pages or so, included a detailed analysis of, inter alia, the contents of the impugned allegations, with an assessment of whether they were defamatory in character; whether the applicant had adduced sufficient proof to establish the veracity of those allegations that were found defamatory, the justification of the request for a prohibition on publication and compensation. The applicant’s request for leave to appeal against the judgment was rejected by the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) on 16 May 1991. The applicant opposed the execution of the Sarpsborg City Court’s judgment of 25 August 1990. Since he was residing in Sweden, the crew members requested the Enforcement Office (kronofogdemyndigheten) of the County of Älvsborg to execute the award of compensation and costs made in the said judgment. On 10 October 1995 the Enforcement Office ordered the applicant to pay certain specified sums. The applicant lodged a judicial appeal against that decision, invoking that the 25 August 1990 judgment violated his right to freedom of expression under Article 10 of the Convention. In proceedings to which the nineteen crew members were parties, the Vänersborg City Court (tingsrätt), by a decision (beslut) of 22 February 1996, rejected the applicant’s claim. It noted that the impugned matter predated the entry into force of the 1988 Lugano Convention (on jurisdiction and the enforcement of judgments in civil and commercial matters) for Sweden and Norway (respectively on 2 January and 1 May 1993), so it fell to be considered under Act 1977:595 regarding the Recognition and Enforcement of Nordic judgments in the area of Private Law, section 8 § 1 no. 6 of which provided that a judgment which was obviously incompatible with the Swedish public order should not be recognised or implemented in Sweden. According to the preparatory works this provision should be applied with great caution. In practice it had only been applied in narrowly defined and exceptional circumstances, when there was question of principles fundamental to the Swedish legal system and provisions protecting the interests of a weaker party. In this respect the City Court observed that the principle of exclusive responsibility on the part of the publisher of an allegation in a periodical or a film was a very important part of the Swedish constitutional protection of free speech. That principle did not exist in the Norwegian legal system, under which several persons might incur liability with respect to the contents of a periodical or a television programme. However, this difference between the Swedish and the Norwegian law, albeit decisive in part for the outcome before the Sarpsborg City Court, did not amount to an exceptional circumstance warranting the application of the public order provision in the 1977 Act. Accordingly, there was no obstacle to recognition and enforcement of the Sarpsborg City Court’s judgment of 25 August 1990. Nor could that judgment be said to breach the Convention. The applicant appealed to the Court of Appeal (Hovrätten) of Western Sweden which by a decision of 25 April 1997 upheld the City Court’s reasoning in the main and its conclusion that public order considerations did not prevent the execution of the Norwegian court’s judgment in Sweden. The Court of Appeal held that it was not for a Swedish court to review compatibility with the Convention beyond considering what followed from the Swedish public order rules. Of particular interest were the rules on exclusive responsibility of the publisher and the limitations on the possibilities for bringing compensation proceedings against persons other than the publisher of a programme. The question was whether it would be inconsistent with fundamental principles of Swedish law to allow enforcement of the compensation award against the applicant for statements with respect to which he would not have been made liable under Swedish law. Since the Freedom of the Press Act (tryckfrihetsförordningen, an instrument forming part of the Swedish Constitution) only applied to printed matters which had been published, it could not apply to the report published by the newspaper without the Ministry of Fisheries’ consent. The applicant’s statements during television programmes, on the other hand, were such that they were covered by the principle of the publisher’s exclusive responsibility. The legal grounds on which the applicant was made liable to pay compensation differed in part from the Swedish rules. In particular he would not have been liable with regard to the statements made during the television programmes. In the assessment of whether execution of the Norwegian judgment would be obviously incompatible with the fundamental principles of the Swedish legal order, the Court of Appeal had special regard to its consideration that a restrictive attitude ought to be adopted in matters that had particular links to the other State. The applicant’s statements concerned Norwegian matters and an activity in that country which did not concern Swedish interests beyond those of public opinion. On a further appeal by the applicant, the Swedish Supreme Court (Högsta domstolen), by a decision of 16 December 1998, upheld the lower courts’ decision. It gave the following reasons: “A first question arising is whether, in a case concerning enforcement, there is an obligation under the Convention for Swedish authorities to examine the conformity of a foreign judgment with the Convention. The European Court has been inclined to consider enforcement proceedings following a judgment as part of the proceedings concerning the determination of civil rights and obligations (see Danelius, Mänskliga rättigheter i europeisk praxis pp 133 and 193). The Court’s judgment in Pérez v France, dealing with an issue of enforcement in France of a criminal judgment delivered in Andorra, could be interpreted to mean that in cases of flagrant denial of justice in foreign proceedings, a certain review ought to be carried out prior to the execution of a criminal judgment (see Danelius, op.cit, p. 116). In these circumstances the Supreme Court finds that an examination ought to be made of [the applicant’s] submission that the Sarpsborg City Court’s judgment must not be executed on the grounds that it violates Article 10 in the Convention. It can, however, not be a question of undertaking a complete review of the City Court’s judgment. Such a scheme would cause an excessive burden to the international co-operation aimed at facilitating the execution of judgments in countries other than that where the judgment was delivered (cp., Danelius, op.cit, p. 116). It is also apparent that a court in the State of origin is normally better placed than an authority in the State of enforcement to make certain assessments, for example evidentiary matters and the application of the national law of the State of origin. Normally the proceedings in that State have been complete and afforded the parties an opportunity to adduce evidence and legal arguments in support for their case. This can be presumed to be the case especially with respect to States which have ratified the Convention (cp., Danelius, op.cit, p. 60). In the relations among the Convention States themselves it should normally suffice for the authority in the country of execution to pursue a rather summary assessment in verifying whether the judgment is in conformity with the Convention. However, should there, for example on a claim by a party, emerge circumstances that would make it questionable whether the judgment fulfils the requirements in the Convention, a closer scrutiny must be carried out. According to paragraph 1 of Article 10 of the European Convention everyone has a right to freedom of expression. Pursuant to the second paragraph this right may be subjected to certain limitations, provided that they are prescribed by law and are necessary in a democratic society inter alia for the protection of the reputation of others. If a person has made a defamatory statement against another person and the case is brought before a court, the court has to weigh the former’s interest in enjoying his right to freedom of expression against the latter’s interest in protecting his personal integrity. As a principle, the person who has made a defamatory allegation against another person must be able to prove that the statement is true. This applies in particular if the statement includes an allegation that the person pointed at has committed a criminal offence. The person who has made the statement must however not be imposed with an unreasonable burden of proof (see the European Court’s judgment in Thorgeir Thorgeirsson v Iceland [of 25 June 1992, Series A no. 239]). The balance that shall be struck between the interest of freedom of expression and the interest of protecting the reputation of an individual may depend on who is the victim of the defamatory allegation and the accusation’s importance to public debate. A politician, for instance, must be prepared to accept more than a private person. The same holds true for political and other institutions. If the allegation is part of a public debate or serves to enlighten on a question of public interest, that is a factor that carries great weight. In the examination of the City Court’s judgment to be carried out in the present enforcement case, the Supreme Court finds from the outset that it must be deemed acceptable that the City Court has placed the burden of proof on [the applicant] with regard to the truth of his statements. The Supreme Court further finds no reason to question the establishment of facts made by the City Court. It must, amongst other, be taken into account that the City Court held an oral hearing of the case over six days and must be assumed to have had ample opportunity to go into the different issues of the case. Finally, as regards to the balancing of interest to be carried out between [the applicant’s] right to freedom of expression and each individual seal hunters’ interest in protecting his reputation, regard must be had inter alia to the fact that the subject that [the applicant] raised in the debate was of great public interest and that he had the mission to serve as a seal hunting inspector and had special reasons for expressing himself. Against this it should be weighed that the applicant’s statements were not pointed at seal hunters in general but at individual persons and that these persons did not occupy a position suggesting that they should accept to be pointed at in the same way as public persons. Having regard to these circumstances, the Supreme Court finds that the City Court’s assessment did not entail a violation of [the applicant’s] right to freedom of expression under Article 10 of the Convention. There is thus no hindrance under this Article to the enforcement of the City Court’s judgment. As regards the question whether there are obstacles to enforcement of the City Court’s judgment in view of public order considerations it should be underlined that, generally speaking, only in exceptional cases can there be question of refusing enforcement of a judgment on such grounds ... This applies especially when there is question of enforcement of a judgment delivered in another Nordic country. The issue of Swedish public order in this case concerns firstly [the applicant’s] participation in the film that was shown on Swedish television. This participation should be considered against the background of the principles on the freedom to impart information under the Freedom of the Press Act (tryckfrihetsförordiningen, an instrument forming part of the Swedish Constitution) and the Constitutional Act on Freedom of Expression (yttrandefrihetsgrundlagen). According to this principle everyone is free to provide information for publication by a printed matter, by radio or television broadcast or other medium, which enjoy special constitutional protection. A person who contributes in this way to the creation of for example a television programme (except in certain circumstances which do not apply here), is free from criminal liability and liability to pay compensation, which instead lay on the publisher and, in the case of liability to pay compensation, on the company. The Constitutional Act on Freedom of Expression is certainly not applicable to the Swedish television programme, as it was shown before the entry into force of the constitutional provisions on 1 January 1992, though corresponding provisions existed under the Act 1966 on the Responsibility for Radio Broadcasting. The freedom to impart information is a fundamental principle under the Swedish Constitution ... It must therefore be assumed that Swedish public order considerations bar the enforcement in Sweden of a foreign judgment imposing criminal punishment or an award of compensation, where the establishment of liability on the other country constitutes a circumvention of the Swedish constitutional protection of persons who contribute to the preparation of a presentation in any of the constitutionally protected media. However, Swedish public order considerations cannot go as far as to always protect a person who has contributed to a programme shown on Swedish television against the enforcement of a foreign judgment concerning liability for participation in the programme. Thus, a person who defames another person in a programme shown in another country, which is later shown in Sweden, cannot, as a rule, avoid enforcement of a judgment delivered in the [first] country establishing that defamation has occurred there. The conclusion is that in an enforcement matter, the question whether there are circumstances warranting the refusal of enforcement in Sweden must be considered on a case-by-case basis. As regards the film in question it has been stated that it was shown at press conferences in Stockholm and Oslo, in which [the applicant] participated, two days before it was broadcast on Swedish television. On the same day as the press conferences took place, the film was also broadcast by English television. It does not appear clearly from the City Court’s judgment what instances of visioning of the film gave rise to liability, but there is no reason for assuming that it did not concern also those instances that did not occur in Sweden. Even if a greater Norwegian public could view the film only when it was broadcast by Swedish television, in the above-mentioned circumstances and the situation as a whole, it cannot be considered against Swedish public order to enforce the Norwegian judgment in this point. Nor were there any other public order grounds constituting a hinder to the requested enforcement.”