CASE OF ERLA HLYNSDOTTIR v. ICELAND (No. 3)
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano
5. The applicant, Ms Erla Hlynsdóttir, is an Icelandic national who was born in 1978 and lives in Reykjavík. She is a journalist, working for the newspaper DV. 6. In May 2007 the Director of Public Prosecutions issued an indictment against two individuals for importing cocaine into Iceland. The cocaine had been hidden in a Mercedes Benz vehicle, where it had been discovered by customs officers. The police had removed the cocaine and put another substance in its place. One of the accused, Mr A, had collected the car from customs and had paid customs duties for it. He and the other accused had driven the vehicle to a garage, where the substance had been removed. 7. The newspaper DV published an article on 5 July 2007 on the ongoing criminal proceedings against Mr A and his co-accused before the Reykjavík District Court. A picture of Mr A was published on the front page of the newspaper showing him walking into the courtroom. There was a large headline under the photograph which read “Scared cocaine smugglers” and underneath that it was written that both the accused were afraid of retaliation by their accomplices and had therefore refused to identify them. Mr A´s name also appeared on the front page, with a report that he and his co-accused could expect prison sentences of seven to eight years and three to four years respectively for removing the substance. 8. The article itself was reproduced on page 2 of the newspaper and the applicant was identified as its author. Next to the article appeared another photograph of Mr A, again using his name. The article stated that Mr A had been afraid to reveal the identity of the man he claimed had actually been behind the importation, and that he feared for his family’s and his own safety. The article contained the following passage: “The Director of Public Prosecutions is requesting a punishment of seven to eight years´ imprisonment in respect of [Mr A], who has been indicted for importing nearly 3.8 kilograms of cocaine, intended for sale, together with an unknown accomplice. A punishment of three to four years is requested in respect of [Mr B], who is also charged in the case with removing the alleged drug from the vehicle, in cooperation with [Mr A],”. 9. In the next paragraph it was stated: “The cocaine was hidden in a vehicle which [Mr A] imported into the country and took possession of in February 2007, believing that the cocaine was still in the vehicle, but the police had already confiscated the cocaine and replaced it with a decoy drug.” This sentence was a verbatim rendering of a part of the description of the facts contained in the indictment, without explicit reference being made to that document. 10. By a judgment of 12 July 2007 the District Court acquitted both Mr A and his co-accused of all charges, and on 29 May 2008 the Supreme Court upheld the acquittal. 11. On 21 October 2008 Mr A lodged defamation proceedings before the Reykjavík District Court against the applicant and Mr S.M.E., who was the editor of DV at the time. In his writ he requested that the headline (“Scared cocaine smugglers”) which had appeared on the front page of the newspaper published by DV on 5 July 2007 and the passage quoted in paragraph 9 above be declared null and void. In addition, Mr A requested that the respondents jointly and severally be ordered to pay him 2,500,000 Icelandic krónur (ISK) in respect of non-pecuniary damage and ISK 500,000 to cover the costs of publishing the judgment in the case in three newspapers. 12. Mr A argued that the responsibility for the statements lay with the applicant as the author of the article, in accordance with section 15 (2) of the Printing Act no. 57/1956. No one had been identified as the author of the front-page headline, and therefore the publisher or editor was responsible for it (see section 15 (3) of the same Act, at paragraph 23 below). 13. By a judgment of 26 June 2009 the District Court found for the applicant and the editor. In its reasoning it referred to the right to freedom of expression and protection of private life, as guaranteed by the Icelandic Constitution. It further stated: “When there is an overlap of the defendant’s aforementioned interest in the enjoyment of freedom of expression and the plaintiff’s interest in the enjoyment of respect for his private life, it must be examined whether the publication of the material, for which the defendants are responsible, can be considered to have taken place in the context of a general public debate and therefore to be of interest to the public. The disputed comments appeared in newspaper coverage of public criminal proceedings in which the plaintiff had been accused of a serious crime. The proceedings were open to the public and to those who wanted to observe, in accordance with the usual practice, and the defendants’ account is in accordance with what was revealed at the proceedings. News reporting of criminal cases being tried before the domestic courts must be considered normal and part of a journalist’s work. It cannot be a requirement that news reporting must await the outcome of a trial before publication. It makes no difference that the plaintiff was later acquitted of the charges. It must therefore be held that the published material, at the time it was published, was relevant to the public and was newsworthy. Although the headline on the front page is sensationalist, it has to be kept in mind that it refers to what was revealed during the testimony of the plaintiff in the criminal case, namely that he did not want to reveal the name of the person on whose behalf he was acting in respect of the charge of importing the drugs, as he feared for his own and his family’s safety. In view of all this, the statements are not considered to have been insulting or hurtful to the plaintiff, as defined in Article 234 of the Penal Code, or to contain an insinuation, as in Article 235 of the same Code. Moreover, they will not be deemed to entail an illegal injury to his character and honour ...” Mr A appealed against the District Court’s judgment to the Supreme Court. 14. By a judgment of 11 March 2010, the Supreme Court overturned the District Court judgment. It declared null and void the words “cocaine smugglers” on the front page and the statement “... believing that the cocaine was still in the vehicle” and ordered the applicant and the editor jointly and severally to pay the appellant ISK 100,000 (approximately 575 euros (EUR)) in compensation for non-pecuniary damage, plus interest, and ISK 50,000 for the costs of publishing the judgment. Its judgment contained the following reasons: “When the statements at issue in the present case appeared in DV on 5 July 2007, the criminal proceedings against the appellant and another man were pending before the District Court. This was clearly stated in the article, in which the substance of the charges against them was reproduced, along with a few essential points from the prosecution’s evidence and the statements which they had given at the hearing. It is not argued that the narrative was in any way incorrect, with the exception of those statements which are at issue in this case. The material published concerned a serious criminal case, which was being tried at a public hearing. It was therefore not subject to any limitations under Article 10 of the Code of Criminal Procedure no. 19/1991, in force at the time, which would have prevented the media from utilising its freedom [of expression] under Article 73 of the Constitution, to report on the case, including freedom to identify the accused. However, in that discussion special weight ought to be attached to the fact that it is the role of the courts, not the media, to determine whether an accused person is guilty of an offence. ... The appellant was acquitted of the ... criminal charges by a judgment of the District Court exactly one week after the publication of the statements in DV, and that conclusion was unaltered after the adoption of the Supreme Court judgment of 29 May 2008. By virtue of that conclusion the courts had rejected the accusation that the appellant and the co-accused in this case had been guilty of being ‘cocaine smugglers’, and also that the appellant in February 2007 had taken possession of the aforementioned vehicle ‘believing that the cocaine was still in the vehicle’. However, these two assertions were made in the statements which the appellant seeks to have declared null and void, without any reservation being made with reference to the fact that the assertions were based on an indictment which was contested in court. Bearing in mind the outcome of the criminal proceedings that had been instituted by that indictment, the statements in question contained an insinuation against the appellant, and there is no ground for rejecting his request for them to be declared null and void. As regards the other statements which the appellant claims should be declared null and void, it must be held that the word ‘scared’ in the headline on the front page contained a value judgment, and was also supported by comments made by the appellant and the co-accused during the criminal proceedings. The narrative in the article inside the newspaper, stating that the cocaine had been hidden in the vehicle which the appellant had imported into the country and had taken possession of in February 2007, after the police had confiscated the drugs and replaced them with another substance, was merely a description of facts that were later substantiated during the criminal proceedings. There are therefore no grounds for declaring the statements relating to this matter null and void. The statements which are declared null and void were published in an article, of which [the applicant] was named as the author, except for one word [kókaínsmyglarar] in the headline on the front page. She is liable to pay compensation for them, as provided for in section 15(2) of the Printing Act. On the other hand, since the author of the front-page headline was not identified, liability to pay compensation for that statement falls on the defendant [Mr S.M.E.] as the editor of the newspaper, under section 15 (3) of the same Act. The statement in the front-page headline and those in the article on page two were linked to such a degree [voru þau tengsl] that the defendants must be ordered jointly to pay compensation for them. It is considered that since, in the present case, declaring the statements null and void alone rectifies the appellant’s position to a great extent, compensation in the amount of ISK 100,000 is appropriate, with default interest, as further specified in the operative part of the present judgment. With reference to Article 241 § 2 of the Penal Code, the defendants must also be ordered to pay ISK 50,000 to the appellant to cover the costs of publication of the outcome of this case; he has not claimed interest on that amount.” 15. After his acquittal, Mr A initiated proceedings before the domestic courts, seeking compensation from the Icelandic State for unlawful detention during the above-mentioned criminal investigation, but to no avail. The Supreme Court, in its judgment of 16 June 2010, found the detention to have been justified even though he was later acquitted. 16. In April 2009, Mr A was again arrested for involvement in importing drugs into Iceland, and in December 2009 he was sentenced by a final judgment to ten years´ imprisonment for his part in the crime.