CASE OF SALUMÄKI v. FINLAND
No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1978 and lives in Helsinki. 6. The applicant is a journalist with a nationwide evening newspaper, IltaSanomat. On 8 July 2004 Ilta-Sanomat published an article, written by the applicant, concerning the investigation into a homicide which had been committed a few days earlier. The article referred to K.U., a well-known Finnish businessman. The front page of the edition carried a headline: “Cruel killing in Vantaa: The executed man had connections with K.U.?” A photograph of K.U. also appeared on the front page. The article itself was entitled: “The victim of the Vantaa homicide had connections with K.U.?” Under a smaller heading, “The suspect in the cruel execution killing is a former member of the [motorcycle gang]”, the article read: “[P.O.], who was brutally killed in Vantaa, may have had connections with the businessman [K.U.]. In 2002 [P.O.] was captured trying to smuggle bags containing money from Estonia into Finland. The police suspect that those bags [with contents] belonged to [K.U.]. The incident is currently pending before the prosecutor for the consideration of charges. [P.O.] is suspected of an aggravated receiving offence and [K.U.] of aggravated debtor’s fraud in that connection. Other suspects besides [P.O.] and [K.U.] have also been exposed regarding that case. In practice, [P.O.] is being considered as a suspected receiver. The leader of the investigation, criminal inspector [M.I.] of the National Bureau of Investigation [(keskusrikospoliisi, centralkriminalpolisen)], says that the [K.U.] –connection is a part of the investigation into the Vantaa homicide.” 7. Under the following subheading “The suspect admitted to being at the scene” the article went on: “The police have detained a 39-year old man as a suspect in [P.O.’s] murder. ‒ In the light of the current evidence, the detained person has no connection with [K.U.], says [the inspector].” 8. The article continued with information concerning the detained person and the ongoing investigation into the homicide. It quoted the investigator’s statement that it was possible that the suspect had been acting under commission which, according to the applicant, implied the possibility of a contract killing. 9. The article was illustrated by a photograph, apparently taken in the vicinity of the crime scene. 10. Next to the article there was a separate information column concerning K.U.’s previous conviction for economic crimes and his academic achievements. Under a heading: “Who?” the column reproduced a photograph of K.U., taken at the public defence of his doctoral thesis. 11. On the same date the same information was published in the other evening newspaper Iltalehti in the form of an interview given by K.U. 12. On 11 April 2006 the public prosecutor preferred charges against the applicant and H.S., the newspaper’s editor-in-chief at the time. In his indictment the prosecutor maintained that by writing and allowing publication of the above article, the applicant and H.S. had given false information about K.U. in a manner that had been conducive to causing him suffering and damage and to subjecting him to contempt, and that they had also disparaged him in other ways. The prosecutor did not allege that the information imparted in the article had been false as such, but contended, inter alia, that the combination of large headings with question marks, the text of the article, the photographs of K.U. and his personal profile had aimed to insinuate to the readership that K.U. might have had a motive to commission the killing. 13. K.U., for his part, requested that the applicant and H.S. be punished and claimed compensation for suffering and legal costs in the same proceedings. He contended that the defendants had unlawfully connected him with murder in Finland’s largest evening newspaper. The use of his photograph, taken at the public defence of his doctoral thesis, had added to his suffering as he was thus defamed as an academic, which was to be his future career. According to K.U., the worst part of the criminal act had been the combination of the heading and his photograph, and the image thus created in the minds of those people who had not read the article itself. The defendants had sought to profit by their act. In addition to the permanent stigma, K.U. maintained that the offence had brought shame and distress to his family. 14. The applicant and H.S. contested the charge and the civil claims. Their main arguments were the following. The article did not contain any false information, nor could it have disparaged K.U. or caused him suffering. The latter point was highlighted by the fact that K.U. had himself given an interview concerning the same matter to another evening newspaper published on the same date. The article concerned a criminal investigation of general interest and was based on information given by the authorities. K.U. was a public figure and his connection with P.O. had been an issue of general interest and significance in itself. By pressing charges the prosecutor had unnecessarily interfered with the defendants’ freedom of expression, protected by the Constitution and Article 10 of the Convention. 15. When heard in person at the District Court’s oral hearing H.S. submitted, inter alia, that K.U. had contacted him after the article had been published. He had been very hurt and upset. H.S. had then offered him the possibility of rectification. According to the documents, K.U. had turned down that offer. 16. On 25 August 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) issued its judgment. It convicted the applicant and H.S. of defamation pursuant to Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. The applicant was sentenced to 30 day-fines amounting to a total of 720 euros (EUR). She was also ordered to pay K.U., jointly and severally with H.S., EUR 2,000 for suffering and EUR 1,500 in legal costs. 17. In its reasons the court noted that it had to examine the conflicting interests of freedom of expression and the right to privacy, referring to sections 10 and 12 of the Constitution and Article 10 of the Convention. It also made reference to the Supreme Court precedent no. KKO:2006:20, where that court found that the freedom of expression did not justify violation of a person’s honour or private life. In assessing the article written by the applicant the court found as follows: “It is undisputed that in the summer of 2004 [K.U.] was a public figure. It is also undisputed that the article did not contain factual errors. Thus, each piece of information contained therein was accurate. The District Court has to assess whether the article included such insinuations that have been conducive to causing suffering or contempt or if it was disparaging in other aspects. The article ... covered the pre-trial investigation of a homicide which had taken place a few days earlier, as well as another large-scale case concerning economic crime, already pending before the prosecutor. The same person had been the victim of the homicide and one of the suspects in the economic offences. [K.U.] had known the victim of the homicide and was also one of the suspects in the case concerning economic offences. The defendants have pleaded, inter alia, that the newspaper had been obliged to report on crime. The article ... had emphasised the connection between [K.U.] and the victim of the homicide. In the District Court’s view no such circumstances have emerged in these proceedings which would have linked the fact that [K.U.] had known the victim of the homicide to his public activities. Nor has it been established that the fact that [K.U.] knew the victim ... had been of general interest or that this piece of news had had such significance to society that it had been important to publish it.” 18. The District Court concluded: “The most central topics of the article ... had been the connection with the victim of the homicide and [K.U.], suspicions of economic offences, organised crime, and a possible contract killing. The use of the heading ‘The victim of the Vantaa homicide had connections with [K.U.]?’ along with the background information on [K.U.] under a title ‘Who?’, illustrated with his photograph, had personified the whole article to [K.U.] Although the heading of the article carried a question mark and the first paragraph in the text mentioned that the victim might [italics added here] have had connections with [K.U.], the text does not provide an immediate answer to that question, nor does it state clearly that the victim and [K.U.] had known each other only from other circumstances. The article had left the answers open. As the text dealt with the connection between the victim of the homicide and [K.U.] and, at the end, a possible contract killing, [K.U.] had also been connected with a contract killing. Connecting a person groundlessly with a contract killing violates his honour. By combining information received and statements given by the head of the investigation and by mixing two different criminal investigations the article has given an ambiguous picture of the connection between those cases. The headings and the information concentrating on [K.U.]’s personal profile had made [K.U.] the main common feature of the crimes. The District Court finds that in the article [K.U.] had been linked with a homicide in a manner that insinuated a connection between [K.U.] and the commission of the homicide and a contract killing. Such an insinuation violates [K.U.’s] honour and has caused him suffering.” 19. The District Court was composed of one professional judge and three lay judges. One of the lay judges was in favour of an acquittal. In his dissenting opinion he stressed the fact that all the information presented in the article had been accurate. In his view the mere fact that a party to the case, his family or friends were shocked about the news coverage, or that the readers of a newspaper were not fully able to comprehend the text, could not constitute defamation. 20. The applicant and H.S. appealed against the judgment to the Helsinki Court of Appeal (hovioikeus, hovrätten), relying mainly on their previous arguments. They also contested the lower court’s interpretation of the law. 21. On 14 November 2007 the Court of Appeal upheld the District Court’s judgment. In its reasoning the appellate court reiterated that giving false information or making false insinuations about another person in a manner conducive to causing damage or suffering to that person, or subjecting that person to contempt, constituted defamation as set out in Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code. It referred to the relevant Government Bill for the amendment of that provision (HE 184/1999 vp) in stating that it was characteristic of that offence to concern false factual information or a false insinuation bearing a close resemblance to factual information. In principle, the veracity of an argument may be reviewed afterwards. If an argument is accurate, or if the insinuation concerns a fact, the act may nevertheless be punishable as defamation under point 2 of the provision, if the information is given or insinuation made with a view to disparaging another person deliberately. 22. The court then found that: “It is undisputed that the information in the article published in Ilta-Sanomat on 8 July 2004 concerning two different criminal matters was accurate as such. The common feature of those matters has been the fact that [K.U.] and the victim of the homicide had been suspects in one of the criminal cases mentioned in the article. The headings of the article, the text, and the photographs of [K.U.] on the cover and on the article have, however, created a connection falsely implying that [K.U.] was somehow involved in the homicide. The heading of the article and its tone were such that the fact that [K.U.] was not, strictly speaking, an accomplice to the homicide only became clear on reading through the article more closely. It followed that Chapter 24, Article 9, paragraph 1, point 1, of the Penal Code was to be applied in this case, as indicated by the District Court.” 23. The Court of Appeal went on to assess in detail whether the defendants’ conduct could be regarded as intentional. The court found that the applicant was a professional journalist and that she must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering. Reaching thus an affirmative conclusion, the court found no reason to deviate from the outcome of the lower court’s judgment. 24. On 7 November 2008 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal. 25. The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts: “Section 10 – The right to privacy Everyone’s private life, honour and the sanctity of the home are guaranteed. ... ... Section 12 – Freedom of expression and right of access to information Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...” 26. Chapter 24, Article 9, paragraphs 1 and 2, of the Penal Code (rikoslaki, strafflagen; Act no. 531/2000) provide: “A person who 1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or 2) disparages another person in a manner other than referred to in point 1 shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months. Criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.” 27. Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974, as amended by Act no. 509/2004), provides that a person may be awarded compensation for suffering if, inter alia, his or her liberty, peace, honour, or private life has been violated through a punishable act. In assessing the level of that suffering the nature of the violation, the status of the victim, the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account. 28. According to the government bill to amend the Tort Liability Act (HE 116/1998), the maximum amount of compensation for pain and suffering arising from, inter alia, bodily injuries had in the recent past been approximately FIM 100,000 (EUR 16,819). In the subsequent government bill to amend the Tort Liability Act (HE 167/2003, p. 60), it is stated that no changes to the prevailing level of compensation for suffering are proposed. In the recommendation of the Personal Injury Advisory Board (Henkilövahinkoasiain neuvottelukunta, Delegationen för personskade-ärenden) in 2008, compensation awards for distress in defamation cases can go up to EUR 10,000 and in cases concerning dissemination of information violating personal privacy, up to EUR 5,000. On the other hand, the maximum award for, for example, attempted manslaughter, murder or killing varies between EUR 3,000 and EUR 5,000.