CASE OF EGILL EINARSSON v. ICELAND (No. 2)
No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known personality in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms. 6. Some of the applicant’s published views attracted some attention, as well as controversy. These included, inter alia, his views about women and their sexual freedom. In some instances his criticism had been directed towards named individuals, often women, and in some cases his words could have been construed to mean that he was in fact recommending that they should be subjected to sexual violence. The applicant had often justified such conduct by stating that the material had been meant in jest and that those who criticised him lacked a sense of humour (see Egill Einarsson v. Iceland, no. 24703/15, § 16, 7 November 2017). 7. In November 2011, an 18-year-old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about false accusations made against him by the two women. This case was also dismissed. 8. On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page, and in the interview the applicant discussed the rape accusation against him. The applicant stated several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl’s name to be disclosed and that he was not seeking revenge against her. He accepted that, having placed himself in the media spotlight, he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl’s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy. 9. On the same day a Facebook page was set up for the purpose of protesting about the interview and encouraging the editor of Monitor to remove the applicant’s picture from its front page. Extensive dialogue took place on the site that day. Later that day, X posted a comment on the abovementioned Facebook page which stated, inter alia: “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ... It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...”. 10. On 28 November 2012, the applicant’s lawyer sent a letter to X requesting that she withdraw her statements, admit they were unfounded, apologise in the media and pay the applicant punitive damages, which would be donated to charity. By letter the following day, X’s lawyer opposed the applicant’s claims and submitted that the impugned statements were not defamatory. Furthermore, the lawyer informed the applicant’s lawyer that X had removed the statement in question from Facebook. 11. On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for her to be punished, under the applicable provisions of the Penal Code, for publishing the statements in question. The applicant further requested that the statements “This is also not an attack on a man for saying something wrong, but for raping a teenage girl ...” and “It is permissible to criticise the fact that rapists appear on the cover of publications which are distributed all over town ...” be declared null and void. Moreover, the applicant requested that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for the cost of publishing the main content and the reasoning of the final judgment in the case in the media under Article 241 of the Penal Code, and the applicant’s legal costs. 12. By a judgment of 1 November 2013, the District Court found that X’s comment on Facebook had been defamatory and declared the statements null and void. However, the court dismissed the applicant’s claim for the imposition on X of a criminal punishment under the Penal Code, as well as rejecting the claim to have X carry the cost of publishing the main content and reasoning of the judgment in a newspaper. Furthermore, the District Court did not award the applicant non-pecuniary damage and concluded, finally, that each party should bear its own legal costs. 13. The judgment contained the following reasons: “... The [applicant] claims damages in the amount of ISK 1,000,000 and bases his demand on the general rules of tort law and on Article 26 of Act no. 50/1993 [Tort Liability Act]. According to the aforementioned, it is clear that [X] made defamatory insinuations about [the applicant]. However, when assessing the damage suffered by [the applicant], it has to be taken into account how [the applicant] has built a certain reputation by his conduct in public. Notwithstanding the extensive disputes about his comment made under the name of Gillz, it cannot be seen that he took a clear stand against sexual violence until complaints against him materialised. Nevertheless [the applicant] had full reason to clarify his situation in this respect, taking into account that material stemming from him is often very ambiguous and provocative, and could easily be interpreted as an incitement to this type of violence. When assessing the possible damage to [the applicant], the distribution of the comments which was, as stated before, limited to the distribution entailed in publications on the said Facebook page, together with hundreds or thousands of other comments, has to be taken into account. Additionally, the comments were removed from the website when [the applicant] so requested. Lastly, it should be considered that by declaring the comments null and void, as this judgment concludes, [the applicant] has received full judicial satisfaction. In light of all the above-mentioned considerations there is no reason to order [X] to pay non-pecuniary damages. Furthermore, [the applicant’s] claim to have [X] carry the cost of publishing the main content and the reasoning of the judgment in a newspaper will not be accepted. The impugned comment was published on a Facebook page and therefore it is not necessary to incur the costs of publishing the judgment in any other way. In light of the conclusion of the judgment, and taking account of all the facts, it is appropriate that each party bears its own legal costs [er rétt að málskostnaður falli niður].” 14. By judgment of 18 December 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court’s decision to declare the statements null and void. Furthermore, the Supreme Court upheld the District Court’s decision not to award damages to the applicant and that each party should bear its legal costs. In its assessment regarding that issue the Supreme Court referred to Article 73 (3) of the Constitution, the principle of proportionality and the reasoning of the District Court. 15. The dissenting judge agreed with the majority to declare the impugned statements null and void. However, the judge found that the criteria set out in the Tort Liability Act for the granting of non-pecuniary damages were fulfilled in the case and the applicant should be awarded 200,000 ISK in non-pecuniary damages as well as his legal costs before the District Court and the Supreme Court.