LUNDE v. NORWAY
Inadmissible
Nicolas Bratza
The applicant is a Norwegian national, born in 1963. He is represented before the Court by Mr Christian B. Hjort, a lawyer practising in Oslo, Norway. The applicant is a sociologist and was at the material time employed by the Centre Against Racism (Antirasistisk senter) as a researcher. His application before the Court relates to the publication of a book in respect of which he was found to have defamed Ms I.-M.L. The facts of the case, as described mainly in the national courts’ judgments, may be summarised as follows. In the autumn of 1993 the Centre Against Racism published a book, of which the applicant was the author, entitled “At the extremity” (“Aller ytterst”) with the subtitle “Racist groupings in Norway” (“Rasistiske grupperinger i Norge”). It was presented as a product of scientific research conducted by a sociologist, listing and describing the most important racist groupings and persons in Norway and presenting in chart form the connections between the various groupings. This included the names of some 60 persons, one third of whom had been convicted of offences of assault, some of murder, and sentenced to long terms of imprisonment. The book comprised 9 Chapters entitled: 1. Neo-Nazism in Norway, 2. Neo-nazism in Norwegian, 3. The Race Warriors, 4. Norway is Ours, 5. To the Polls against Immigration, 6. Many Rivers Small, 7. Hitler’s Successors or just Silly People (this Chapter was divided into 5 sections: a. Many Differences but these are only Appearances, b. Contacts Abroad, c. Words and Contents, d. Methods, e. Consequences), 8. Society’s Response, and 9. But is that Something to be Concerned About? On the cover of the book, the following is stated about the book’s contents: “AT THE EXTREME is the first book to give an insight into current racist groupings in Norway. Four years ago people in Germany laughed at Neo-Nazis distributing leaflets stating: ‘Germany for the Germans - foreigners get out’. Today the laughter has calmed down. Since the reunification 68 persons have been killed by Neo-Nazis. Many people wonder whether the same could happen in Norway. Are the racist groupings in Norway Hitler’s successors or are they just a gang of silly fools? No other political issue in Norway has roused people to the extent of the debate on immigration. There are today more than twenty racist groupings which are against immigration. Who are they? What do they do? What consequences will this have for Norwegian society? The answers may be found in this book.” The book’s foreword includes the following statement: “Many call them racists. They call themselves Nazis, Neo-Nazis, racists, nationalists or patriots. The labelling may be practical but the substance is more important. The groupings mentioned in this book are described as racists because, by words and deeds, they discriminate and harass individuals and groups on grounds of their ethnic origin, culture or religion. People who form part of racist groups are not of any singular kind. They are not monsters, Hitler fans or mad. They are like ordinary people – almost. Their solution to problems of anxiety and discontent, a channel for their hatred – is to have somebody to blame: If we get rid of immigrants, we may also be able to get rid of social problems such as narcotics, rape, stabbing and social security fraud?” In Chapter 5, at page 60, a certain Ms I.-M.L. is mentioned as follows: “ACROSS PARTY LINES ELECTORAL INITIATIVE (Tverrpolitisk Velgerinitiativ – hereinafter referred to as “the TVI”) The above grouping is actually registered as a party. Its leader is Ms I.-M. L., and it operates from a mailbox at Bjølsen. It is a newsletter party which seldom appears publicly, except for Ms I.-M.L.’s participation in certain TV debates and her leaflets for The Norwegian Association (Den Norske Forening).” The introduction to Chapter 5 stated that there were two registered parties hostile to immigrants in Norway and that “today the parties emerge as an attempt to dress racism with a suit and a tie in order to lure people into believing that it is ‘an entirely ordinary party’ on the same line as other established parties.” In Chapter 7 a., at page 78, it is stated: “As usual in Norwegian society, it is men, in particular elderly men, who are the leaders, except for Ms H.S. (Najonaldemokratene) and Ms I.-M.L. (Tverrpolitisk Velgerforbund). The average age is lower within the militant groupings, but men lead these too. In the skin head milieus there is a stronger presence of young women than in other groups.” Contrary to what is stated above, the TVI was not a registered political party but a grouping of 5 to 6 persons. Under Section 17 of the Parliamentary, County, and Municipal Elections Act 1985 (Act of 1 March 1985 No. 3, Valgloven), the signature of at least 5,000 persons entitled to vote in Parliamentary elections is a prerequisite for the registration of a party by the competent authority, namely the notarius publicus in Oslo. The lists of registered political parties are publicised. At present, there are some 20 registered political parties in Norway. On 26 September 1994 Ms I.-M.L. instituted proceedings against the applicant before the Oslo City Court, claiming that the manner in which she had been mentioned in the applicant’s book constituted unlawful accusations of racism which were defamatory and warranted compensation. She felt particularly aggrieved and defenceless against such research, which was on a different level from ordinary public discussion. The risk of being described as a racist made it impossible to express one’s opinions in a public debate. Following the book’s publication, she feared reprisals from the far left and had had to bear derogatory remarks from neighbours. She was of the firm opinion that she was not a racist. By judgment of 22 May 1995, the City Court acquitted the applicant. While finding that the book had indeed labelled Ms I.-M.L. as a racist it considered that it had been justified. In the City Court’s view the classical lexical definition of racism, which related to the belief that one race was superior to another according to physical and mental distinctions, ought to be supplemented by a more modern understanding of the concept. Ms I.­M.L. had, by her own words and public connections, handled questions of immigration policy in a manner which, she should expect, would spark off reactions. Ms I.-M.L. appealed to the Borgarting High Court (Lagmannsrett), which in a judgment of 18 October 1996 found unjustified defamation within the meaning of Article 247 of the Penal Code. The High Court observed that, given the book’s title, in particular its subtitle, the comments on its cover page and the foreword, Ms I.-M.L.’s group, the TVI, was to be perceived as a racist group by the ordinary reader. The description of that group contained no reservation such as that made with respect to the Progress Party. The accusation of racism not only concerned the TVI but also extended to Ms I.-M.L. She was mentioned as the leader of the group and her name was cited twice. The book’s own definition of the concept of racism stated in the foreword should be decisive for the ordinary reader’s understanding of the book. Given the text on the cover page, taking as a starting point German Neo-Nazis and mentioning that 68 people had been killed by such Nazis, the reader would get the impression that the book dealt with clearly racist groups. However, while Ms I.-M.L.’s remarks published by the Aftenposten on 24 August 1990 about the lack of common traditions between Norwegians and many immigrants or foreigners were deemed to border on racism, the High Court did not find that any of her published statements constituted proof of racism, even though they might be perceived as offensive by some immigrants. Her participation in a certain seminar (at which representatives of a number of racist groupings had been present) also fell within her freedom of expression and opinion. The same applied to the fact that, for a short time, she had held a post on the National Party’s interim governing board in Oslo. Since these matters did not justify describing her as a racist the applicant had failed to prove that the accusations made against her were true. Moreover, while the accusations – which encompassed allegations of discrimination and harassment on ethnic grounds – had been expressed in a book written by a researcher for ordinary sale and were serious, the applicant’s investigations into Ms I.-M.L. had been clearly deficient. The information contained in the book about Ms I.-M.L. and her group was erroneous, namely, the allegations that the group TVI had been registered as a political party, that Ms I.-M.L had taken part in television debates and that she had been involved in the distribution of leaflets for the Norwegian Association. It was clear that the applicant had in part confused Ms I.-M.L. with someone else. In the view of the High Court, had the applicant met the requirement of diligence that ought to apply, he would have avoided such errors, with the result that the TVI would have appeared as a particularly marginal group of little public interest. Probably, if the applicant had carried out reasonable research, this group would not even have been mentioned in the book. Considering the case as a whole, the High Court found that the accusation that Ms I.-M.L. was racist, according to the book’s own definition, must be deemed inappropriate, and constituted punishable defamation. Under Section 3-6 of the Damage Compensation Act 1969 (Skadeserstatningsloven – Law no. 26 of 13 June 1969), the High Court ordered the applicant to pay 20,000 Norwegian kroner (NOK) to Ms I.-M.L. in compensation for non-pecuniary damage. The amount awarded took into account that, to the extent that she felt defamed, she had brought this largely on herself by her affirmations and recommendations. She had expressed views which had been offensive to many immigrants and which, if they were to be accepted, would make their situation difficult in Norway. Regard was also had to the fact that the book had brought the applicant little profit. Finally the applicant was ordered to pay NOK 60,000 for her costs before the City Court and the High Court. On 27 February 1997 the Appeals Selection Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused the applicant leave to appeal.