Contrary to most of those who have expressed their views, I find the judgment in the first ECtHR case of Egill Einarsson v. Iceland both fair and predictable. I will later cover the question on the Margin of Appreciation, which in this case was not of the usual width, but here I will argue that the ECtHR was perfectly consistent with its precedents when estimating the admissibility of the case and whether the Icelandic state struck a fair balance between the right to expression and the right to reputation.
Level of Seriousness
Apart from the criteria that apply to all cases, the question that determines whether a defamation case under Article 8 is admissible is the level of seriousness. A distinction is drawn between the applicant’s reputation and personal integrity.
The first defamation case that was considered under Article 8, the case of Pfeifer v Austria. was found admissible. The Court explained that:
… the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings. There is therefore a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.[§33]
The case of Karako v. Hungary was also admissible but in that incident, the Court concluded that there had been no violation of Article 8. A politician had been accused of working against his own region. He could not demonstrate that the allegations had “constituted such a serious interference with his private life as to undermine his personal integrity.” [§23]
In A. v. Norway, the applicant had some years before been convicted of murder. When two little girls were killed in 2000, he was interrogated, but not prosecuted, and other people were found guilty of the crimes. Subsequently to the interrogation, the media discussed his past in connection with the child murders. A lost a libel case in Norway. The ECtHR held that Norwegian courts had violated his right to reputation.
It is inherently a matter of evaluation if someone’s prestige has been wounded but one conclusion that can be drawn from the case law is that accusing someone of criminal behavior is likely to harm their personal integrity. In the Einarsson’s case, the application was considered admissible on these grounds. [§52]
Based on the case law, finding the applications was foreseeable. In Iceland, like in most countries, rape is considered amongst the gravest crimes. It is punishable up to 16 years imprisonment, which is the same as for an attempted murder and deadly physical attack.
Most defamation cases regard media publications. The individual’s right to privacy is restricted by the public’s right to information and discussion on social and cultural issues, as one of the pillars of democracy. The case law shows that when e.g. politicians and other people of power are concerned, the publics’ right to information weighs more than the right to privacy. The same applies to criminal cases, However, there are limits.
In Bédat v. Switzerland, a journalist had been convicted for publishing confidential documents as a part of his writings about a criminal case. This included research data and trivial information such as the convict’s requests for chocolate etc. The Grand Chamber found that even if the subject was of public interest, the confidential data had not contributed to the public debate and since the journalist had broken the law the domestic judgment had not violated Article 10. [§62-64]
In Einarsson, the expression was considered relevant to general interest since it was published subsequent to the comeback interview where the rape charged had been discussed.
The Victim’s Notoriety and Prior Conduct
One of the things that determine whether the information is in public interest is the notoriety of the person, whose reputation is infringed. Politicians cannot expect the same level of protection as the common man, even when their private life becomes a matter of public discussion. This also applies to celebrities and other public persons.
The case of Axel Springer AG v Germany concerned a confiscation of articles about an actor who was arrested and convicted for the possession of cocaine. The articles had not discussed the actor’s private life and he could not demonstrate that the publishing had harmed him. Thus, the Court concluded that Article 10 had been violated.
As opposed to cases where public persons are in question is the case of Almeida Leitão Bento Fernandes v. Portugal. The applicant had been convicted of libel after publishing a novel including harsh words about her husband’s family. The ECtHR granted the State a wide margin of appreciation e.g. since the victims were private persons.
In Einarsson, the Court considers the plaintiff’s former conduct, referring to the State’s argument of “provocative, if not derogatory, comments about others, including the girl who had accused him of sexual violence”. [§45]
Good Faith and Sources
In cases where journalism is in question, good faith depends on how reliable sources the journalist has based his coverage on.
In the case of Polanco v. Spain, a news report accused one of the applicants of being involved with illegal money-transfer. Her husband, who was a judge, was also mentioned in connection with the alleged offense. The applicants claimed that the domestic courts’ failure to protect the Polancos’ reputation was a breach of Article 8. Since their personal integrity had been harmed, the application was considered admissible. The Court, however, concluded that there had been no breach of Article 8 since the news reporter had been in good faith, since “he could reasonably rely on the sources that he had available” and “taken sufficient measures to verify the veracity of the information.” [§52] (The legitimacy of that assessment has been disputed.)
The case of Chauvy and other v. France is an example of harmful allegations where the condition of good faith was not satisfied. The applicants, who stated that their freedom of expression had been violated, had accused Raymond Aubrac, former leader of the French resistance movement, and his wife Lucie, of treachery etc. The domestic courts had rejected the applicants’ statement of good faith because their main source was the Gestapo head of region, Klaus Barbie. The Court observed inter alia that; “… the domestic courts carried out a detailed and very thorough examination of the book and, in particular, the manner in which the facts and arguments were presented …” [§76]
Personal understanding may not be relevant. This became evident in the case of M.P. v. Finland. M.P. had repeatedly informed the child welfare authorities of her suspicion that her daughter was being sexually abused by the child’s father. This was investigated by the police twice but they found no signs of abuse. The father sued M.P. and she was convicted of libel. She complained to the ECtHR, stating that she had been in good faith, trying to protect her daughter. The Court concluded that there had been a breach of Article 10 on other grounds, and explained that the Court could not “speculate about the motives involved.” [§57]
Good faith is not relevant in the Einarsson case since the impugned statement was considered value judgment by the domestic courts. This will, however, be the main question of the next case of Egill Einarsson v. Iceland, that is now being communicated. In that case, the defendant had stated on Facebook, that the claimant had raped the girl. Her statement was declared null and void but no non-pecuniary damage was decided and the claimant had to pay his own cost. Considering that the defendant knew that the case had been dismissed on the grounds that the evidence was in Egill’s favor and the ECtHR does not speculate about the motives, the “right” conclusion must be that the State should at least compensate Egill for the cost of the legal cases both in Iceland and Strasbourg. It might, however, be relevant that the Court does probably not have the information of the premise for the dismissal of the rape case.
Venue and Form
Most defamation cases regard public discourse, especially media coverage. If the comments in question have fallen in private, they may not be considered nearly as damaging as when they are a part of public debate. This was tested in the aforementioned case of M.P. v. Finland. The Court found that freedom of speech had been violated since she never made public allegations but expressed her concerns in confidential conversations with social workers, who are bound by confidentiality. [§59]
The form and intention can also be determining factors. In Palomo Sànchez v. Spain, members of a labor union had testified against the union in a court case. Subsequently, the union published a journal, the cover page showing a caricature of said members getting ready to sexually satisfy their manager. The editors of the journal were dismissed on grounds of impugning the subjects’ reputation and Spanish courts found the dismissals justified. The ECtHR did not agree with the view that the judgment violated the freedom of speech and explained that a distinction must be drawn between criticism and insult. [§67]
In our case, the Court dismissed the State’s argument that the picture had not been intended to be publicly published since the Supreme Court had admitted that it was public. [§46] The picture was obviously an insult and not criticism but this is less relevant than in the Palomo Sànchez case since Egill is a public figure but the union members were private persons.
Value Judgment or Factual Statement?
An important question in many libel cases is if the expression is presented as informative or just an opinion. In the case of Pfeifer v Austria, the applicant had criticised an academic for writings, colored by positive attitudes towards Nazism. Pfeifer’s criticism was later used by a public prosecutor in proceedings against the said professor, who committed a suicide before the case was closed. A right-wing writer accused Pfeifer of being a part of “hunting society” and pushing the professor to suicide by his harsh criticism. Pfeifer sued the right-winger but the domestic courts found the allegation a value judgment. The Court rejected this interpretation since a causal link had been made between Pfeifer’s article and the professor’s death. [§47] Thus, the State had failed to protect Pfeifer’s reputation.
An example of similar circumstances but a different conclusion is the case of Lingens v. Austria. This is the first case where the limits of freedom of expression under Article 10(2) was tested. Lingens wrote an article where he criticised the Chancellor for supporting a former Nazi and accused him of lack of empathy to the victims of Nazism. Lingens was found guilty of defamation for the use of language as “basest opportunism”, “immoral” and “undignified” and the article was confiscated. His defense was based on the rationale that these terms were value judgments but since these words were intertwined with factual statements, the domestic courts did not agree with that view. The ECtHR explained that the difference between a factual statement and value judgment is that a factual statement is provable. Since the terms in question cannot be proved to be right or wrong the State had made illegitimate restrictions to Lingens’ freedom of speech.
In the Einarsson case, the Court remarks that even if the reason is that “rapist bastard” is a value judgment, “the Court does not exclude the possibility that an objective statement of fact, such as the one impugned in the present case, can, contextually, be classified as a value judgment”. [§50] What kind of context could turn an objective statement into a value judgment? The conclusion that can be drawn from the case law is that the most important deciding factor is the reception.
The Court refers to the case of Karman v. Russia, where calling a politician who had expressed extremist views “a local neofacist” was considered a value judgment even though the journalist had not demonstrated that the politician belonged to a neo-fascist party. In contrast, in Cicad v. Switzerland, domestic courts had found an online article defamatory. The applicant was an organization that works to erode anti-Semitism and uses a modern version of the term anti-Semitism. In the article, a professor was accused of anti-Semitism, by that new definition. The ECtHR concluded that there had been no violation of Article 10, considering inter alia the seriousness of the allegations.
The difference between these two cases is that Anti-Semitism is a crime in Switzerland. Hence the same or similar terms may be considered value judgments when used to express an opinion on someone’s political views or participation, but on the other hand, a factual statement if the said views or participation is illegal.
Another example of how the context can turn a factual statement into a value judgment is the case of Minelli v. Switzerland. Minelli was a known lawyer who had also been a journalist and vocal in political debates. A journal published an article where Minelli was portrayed as a hypocrite, titled: “Wenn der Alte Wilderer zum Jagdaufseher Wird.” In English translation: “When a poacher turns a gamekeeper”. Minelli claimed this title was a libel. The ECtHR endorsing the State’s arguments found the application manifestly ill-founded. Switzerland’s rationale is worth attention. A poacher is obviously a factual statement and poach is a crime that in its nature can be demonstrated, and not a matter of opinion. Yet the statement was not considered a factual statement. The reason is that this is a figurative speech, a phrase found in many languages. Minelli had never been accused of poaching and the readers would not understand this literally but as a metaphor for someone who should not be trusted.
In Icelandic context, a comment implying sexual violence is possible. Being “sodomised” is actually a phrase, frequently used to describe the view that someone is being maltreated by those in power. When people state that they have been “sodomised” in such context everybody understands that this has nothing to do with sexual acts. Here is one example, published in a mainstream medium. The person interviewee says that the public has been sodomised by the big grocers.
In such a case, a factual statement becomes a value judgment. On the other hand, I dare to state that no one, not the domestic judges either, understood the “rapist bastard” comment as anything other than a factual statement. It must also be noted that even value judgments must have some connection to reality. A figurative speech is therefore, no alibi in a case of real libel. In the Einarsson case, the Court concluded that the context did not offer a reason to view the word rapist as a value judgment and even if that classification was accepted “there must exist a sufficient factual basis to support it, failing which it will be excessive.” [§52] This conclusion is the key to the question of why the State was not granted a wide MoA, which will be the next subject of my next article on the case.