Professionals
II. RELEVANT DOMESTIC LAW 43. The relevant provisions of the Penal Code of 22 May 1902 ( straffeloven ), in force at the relevant time, provided as follows: Article 246 “Any person who by words or deeds unlawfully defames another person, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to six months.” Article 247 “Any person who by words or deeds behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt or loss of the trust necessary for his position or business, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for up to two years may be imposed.” A limitation to the applicability of Article 247 arose from the requirement that the expression had to be unlawful ( rettsstridig ). While this was expressly stated in Article 246, Article 247 had been interpreted by the Supreme Court to include such a requirement. Article 390a “Any person who by frightening or annoying behaviour or other inconsiderate conduct violates another person’s right to privacy, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to two years. ...” 44. Section 3-6 of the Compensation Act of 13 June 1969 ( skadeserstatningsloven ) reads: “Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing a punishment are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non-pecuniary damage as the court finds reasonable. If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher shall also be liable to compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in respect of them. The Norwegian Broadcasting Corporation is similarly liable when anybody acting in its service is responsible under the preceding paragraph for a broadcast. The same rule applies to any other broadcasting institution. In pronouncing a judgment which imposes a punishment or declares a statement void, the court may order the defendant to pay the victim an amount covering the costs of publishing the judgment. The same rule applies in the case of any conviction under § 130 of the General Civil Penal Code. ...” 45. Section 18 of the E-Commerce Act of 23 May 2003 ( ehandelsloven ) reads: Section 18 Exemption from liability for certain storage services “A service provider who stores information at the request of a service recipient, may only (a) be punished for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent, or (b) be held liable to pay compensation for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent or gross negligence. The service provider is in any event exempt from criminal or civil liability if he without undue delay takes necessary measures to remove or block access to the information upon the intent or gross negligence under the first paragraph having appeared. A service provider is not exempt from liability pursuant to this section if the service recipient is acting on behalf of the service provider or under his control.” 46. The two first paragraphs of section 8a of the Gender Equality Act of 9 June 1978 ( likestillingsloven ), in force at the relevant time, provided: Section 8a (Harassment on the basis of gender and sexual harassment) “Harassment on the basis of gender and sexual harassment is not permitted. ‘Harassment on the basis of gender’ means unwanted behaviour connected to a person’s gender and which has the effect or as purpose to harm another person’s dignity. ‘Sexual harassment’ means unwanted sexual attention that is troublesome to the person receiving the attention.” Pursuant to the second paragraph of section 17, the general rules on civil liability applied to intentional or negligent infringements of the Gender Equality Act. 47. The relevant sections of the Dispute Act of 17 June 2005 ( tvisteloven ) read: Section 20-2 Award of costs to the successful party “(1) A party who is successful in an action is entitled to full compensation for his legal costs from the opposing party. ... (3) The court may exempt the opposing party from liability for legal costs in whole or in part if the court finds that there are compelling grounds to justify an exemption. The court shall, in particular, have regard to: (a) whether there was justifiable cause to have the case heard because the case was uncertain or because the evidence was clarified only after the action was brought, (b) whether the successful party can be reproached for bringing the action or whether he has rejected a reasonable offer of settlement, or (c) whether the case is important to the welfare of the party and the relative strength of the parties justifies an exemption.” Section 20-5 Assessment of compensation for costs “(1) Full compensation for costs shall cover all necessary costs incurred by the party in relation to the action, unless there is cause to exclude the costs pursuant to special provisions. In assessing whether costs have been necessary, the court shall have regard to whether it was reasonable to incur them in view of the importance of the case. The party may claim reasonable remuneration for his own work on the case if the work has been particularly extensive or would otherwise have had to be undertaken by counsel or another qualified assistant. ... (3) In cases that are decided following an oral hearing, a party who claims costs shall submit a statement of costs. The statement shall be submitted at the conclusion of the court hearing. If the amount of some items is unknown, the statement shall be supplemented within the time-limit fixed by the court. Items of expenditure shall be specified so as to give the court an adequate basis upon which to make an assessment. Lawyers’ fees shall always state the amount and number of hours related to the following stages of the case: (a) the period up to the submission of a writ of summons or reply, alternatively notice of appeal and reply to notice of appeal, (b) the period up to the start of the main hearing or oral finalisation of the case, alternatively the appeal hearing, and (c) the period up to the conclusion of the case at the current instance. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. The applicant complained that the domestic authorities, by not sufficiently protecting her right to respect for her private life and requiring her to pay litigation costs to the extent seen in her case, had acted contrary to Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 49. The Government contested that argument. A. Admissibility 50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 51. The applicant submitted that the comments in question had clearly been unlawful and that the domestic courts had not undertaken the exercise of balancing the rights protected by Articles 8 and 10, respectively. 52. The applicant acknowledged that the inheritance case had been in the public interest, but argued that the articles published by Hegnar Online and the two other publications had not been balanced. Reference was made to the statement by the Press Complaints Commission to the effect that Kapital and Finansavisen had breached the code of conduct for journalists. 53. Although Hegnar Online had established a system with a “warning button” and some members of staff had been tasked with monitoring content on the forum, this had clearly been insufficient. The system had been incapable of handling the large amount of comments posted on it. 54. The applicant had not been in any position to identify the anonymous commenters; she would have needed to contact the police and report the incidents, but even then the discovery of their identity would not have been guaranteed. 55. Recognising that liability for third-party comments might have some negative consequences for freedom of expression on the Internet, the applicant maintained that the website in the present case was one of the biggest platforms and debate forums in Norway and that liability would not have any significant negative impact. 56. The requirement for the applicant to pay the defendants’ legal costs of approximately EUR 49,964 (including interest) in the domestic proceedings formed a separate reason why there had been a breach of Article 8 of the Convention. (b) The Government 57. The Government argued that the comments in question had not attained such a level of seriousness or been carried out in such a manner as to have caused prejudice to the personal enjoyment of the right to respect for private life. 58. The media coverage of the inheritance case had formed the background for the instant case and the applicant was, inter alia, a well ‑ known lawyer, a former talk show host and had previously been active in public debate. The City Court’s assessment of the context of the comments had been in line with the European Court of Human Rights’ case ‑ law in respect of Article 8 of the Convention. 59. The High Court had examined the measures applied by the defendants in the domestic proceedings in order to prevent or remove the defamatory comments, and had assessed those measures in a manner consistent with the criteria developed by the Court. 60. The Government did not dispute that the impugned comments had been made by anonymous posters and that there had not, at the time, been a system for registering users. The applicant had not taken any steps to discover the identities of the posters. 61. The Court’s assessment in the case of Pihl v. Sweden ((dec.), no. 74742/14, 7 February 2017) and the similarities to that case weighed clearly in favour of the overall conclusion that there had been no violation in the instant case. 62. With respect to the litigation costs, the Government submitted that Article 6 § 1 of the Convention was lex specialis and that Article 8 could therefore not come into play. The case of MGN Limited v. the United Kingdom (no. 39401/04, 18 January 2011) was factually different and concerned Article 10; its rationale could not be applied to Article 8. The domestic courts had performed a balancing act in accordance with the Dispute Act which had been in line with the obligation to secure access to the courts and which had not disclosed any unreasonable lack of proportionality between the aims pursued and the means employed. 2. The Court’s considerations 63. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which extends to a number of aspects relating to personal identity, such as a person’s name or image, and furthermore includes a person’s physical and psychological integrity (see, for instance, Von Hannover v. Germany, no. 59320/00, § 50, ECHR 2004 ‑ VI, and Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, ECHR 2017). It has also been accepted by the Court that a person’s right to protection of his or her reputation is encompassed by Article 8 as part of the right to respect for private life (see Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016, with further references). 64. In order for Article 8 of the Convention to come into play, the attack on personal honour and reputation must attain a certain level of seriousness and must have been carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 137, ECHR 2015; and Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018). 65. The Court observes that what is at issue in the present case is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. While the essential object of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may also involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under Article 8 does not lend itself to precise definition; the applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the relevant competing interests (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 98-99, ECHR 2012). 66. In this respect, as concerns competing interests under Article 8 and Article 10 of the Convention, the Court has established the following general principles, as summarised in Delfi AS, cited above, § 139: “The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).” 67. In making this proportionality assessment, the Court has also identified the following specific aspects of freedom of expression as being relevant for the concrete assessment of the interference in question: the context of the comments, the measures applied by the company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the company (see Delfi AS, cited above, §§ 142-143 and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 69, 2 February 2016). 68. The question is thus whether, in the present case, the State has struck a fair balance between the applicant’s right to respect for her private life under Article 8 and the online news agency and forum host’s right to freedom of expression guaranteed by Article 10 of the Convention. 69. In this connection, the Court notes at the outset that the comments made about the applicant were found by the City Court not to constitute defamation under Articles 246 or 247 of the Penal Code (see paragraph 43 above), while the High Court deemed it unnecessary to take a stand on whether the comments were defamatory. The Court also considers that it is not necessary to examine in depth the nature of the impugned comments, as they in any event did not amount to hate speech or incitement to violence (contrast Delfi AS, cited above, §§ 18, 114 and 162; compare Pihl, cited above, §§ 23-25). 70. Turning to the possibilities for the applicant to pursue claims against the anonymous individual or individuals who had written the comments, the Court sees no reason to contest the applicant’s allegation that she would have faced considerable obstacles in attempting to do so. 71. As to the context in which the comments were made, the Court takes account of the fact that Hegnar Online was a large, commercially run news portal and that the debate forums were popular. It does not appear, however, from the judgments of the domestic courts that the debate forums were particularly integrated in the presentation of news and thus could be taken to be a continuation of the editorial articles. 72. With respect to the measures adopted by Hegnar Online, it appears that there was an established system of moderators who monitored content, although it is stated in the High Court’s judgment that they may not have discovered a great number of unlawful comments to remove of their own motion. Moreover, readers could click on “warning” buttons in order to notify their reaction to comments (see paragraph 37 above). Lastly, it appears from the present case that a response was also given to warnings by other means, such as email. 73. In the instant case, “comment 1” and “comment 2” had not been picked up by the moderators, but on 17 November 2017, thirteen minutes after having notified them, the applicant’s counsel received an email stating that the comments had been deleted (compare Pihl, cited above, § 32, about removal of an unlawful comment one day after notification had been given). The comments had been online since 6 and 8 November 2010, respectively. “Comment 3”, posted on 30 November 2010, had been deleted on the moderator’s own initiative before receipt of the notification on 3 December 2010. Based on an overall assessment, the High Court found it irrelevant that the comments had been mentioned in a letter to the Press Complaints Committee and that it had in that way become known to the chairman of Hegnar Online that the applicant had reacted to comments that she found to constitute sexual harassment. Upon an overall examination and assessment of the measures that had been put in place in order to monitor the forum comments – hereunder taking account of the control being only subsequent and that the commentators did not have to register – and the specific responses to the applicant’s notifications, the High Court found that the news portal company and its editor had acted appropriately (see paragraphs 36-39 above). 74. The Court observes that the applicant’s case was considered on its merits by two judicial instances at the domestic level before the Supreme Court refused leave to appeal (compare Pihl, cited above, § 36). The domestic courts reviewed the relevant aspects of the case (see paragraph 67 above). In line with the principles set out in Delfi AS, cited above, § 139 (see paragraph 66 above), there are no reasons for the Court to substitute a different view for that of the domestic courts. 75. In view of the above, the Court finds that the domestic courts acted within their margin of appreciation when seeking to establish a balance between the applicant’s rights under Article 8 and the news portal and host of the debate forums’ opposing right to freedom of expression under Article 10. 76. With respect to the complaint about the compensation for litigation costs awarded, the Court observes that the expenses did not involve any success fees or similar constructions. The case was tried in full before two court instances and both instances conscientiously reviewed, and considerably reduced, the extent of the compensable costs (see paragraphs 29 and 40 above). In the circumstances of the case, the domestic courts found that there were no reasons to deviate from the starting point that the winning party be awarded compensation for their fees and expenses. 77. While regard must be had to the general level of expenses in the jurisdiction (see, for example, AS Dagbladet v. Norway (dec.), no. 60715/14, § 33, 20 February 2018, and Avisa Nordland AS v. Norway (dec.), no. 30563/15, § 48, 20 February 2018), the Court notes the considerable amount of costs imposed on the applicant. However, taking account of the nature of the claim lodged before the national courts and the subject matter, the Court does not consider that it in the instant case can call into question the domestic courts’ assessment as to the imposition of costs, also in view of the High Court’s examination of the “parties’ welfare” and their “relative strength” (see paragraph 40 above). Against that background, the Court does not need to address the Government’s argument that Article 6 § 1 is lex specialis, as it is in any event satisfied that the domestic courts sufficiently safeguarded the applicant’s rights under Article 8 and that there has been no violation of that provision.
The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, findind that the Norwegian courts had sufficiently safeguarded the applicant’s rights under that provision. It noted in particular that the comments made about the applicant had been found by the City Court not to constitute defamation under national law, while the High Court had deemed it unnecessary to take a stand on whether they were defamatory or not, and considered that the national courts had acted within their discretion (“margin of appreciation”) when seeking to establish a balance between the applicant’s rights under Article 8 and the opposing right to freedom of expression under Article 10 of the Convention of the news portal and host of the debate forums. Moreover, the domestic courts’ rulings on litigation costs being awarded to the defendants had not as such violated Article 8 of the Convention.