Persons arrested or under criminal prosecution
II. RELEVANT DOMESTIC LAW AND PRACTICE 35. Conditions for holding a defendant liable for defamation are set out in Chapter 23 of the Penal Code, Article 247 of which provides: “Any person who, by word or deed, 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 confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“ rettsstridig ”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. 36. For further specific information on the relevant national law, reference is made to paragraphs 41 to 45 and 47 of Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, ECHR 2007 ‑ ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 38. The applicant complained that the unfavourable outcome before the Norwegian courts of his defamation suit against Fædrelandsvennen constituted a failure by the national authorities to protect his right to the presumption of innocence under Article 6 of the Convention, which as far as relevant reads: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. The parties ’ submissions (1) The applicant 39. The applicant emphasised that, despite the utmost importance of not prejudging him, as even pointed out by some of the neighbours in the disputed press coverage, the newspaper had exposed him as the most likely perpetrator of the crime and had thereby subjected him to prejudgment that was particularly damaging to his reputation. 40. He argued that in criminal cases it was for the police, not for the press, to identify possible perpetrators. Only when a person had been formally charged was it permissible for the press to divulge information about suspicion, provided that the information about the charge had been presented correctly. 41. The police had had the situation well under control. They had interviewed the applicant as a matter of routine and had considered him only as a witness. Had the police found a need to warn people in the neighbourhood, they would have done so. In any event, the newspaper was aware of the police ’ s presence in the area. 42. The applicant stressed that publishing suspicion of serious crime might influence a trial court negatively and cause prejudice to judicial independence and the course of justice. As correctly pointed out by the minority of the Supreme Court, it should not be permissible for the press to publicise unfounded suspicion of aggravated crime, like here, against identifiable individuals. (2) The Government 43. The Government disputed the applicant ’ s complaint under Article 6 § 2 of the Convention. They submitted that the outcome of the defamation proceedings before the Norwegian courts did not attract the application of Article 6 § 2 of its own and invited the Court to declare the complaint inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. 44. In this regard, the Government argued that the right to the presumption of innocence embodied in Article 6 § 2 was a vertical provision protecting a person charged with a criminal offence vis-à -vis the national authorities. Between private parties, an accusation of criminal guilt could raise a legal issue of defamation but not a legal issue under Article 6 § 2. As the Court had stated in Allenet de Ribemont v. France ( 10 February 1995, § 36, Series A no. 308), the presumption of innocence guarantee was reserved for accusation of criminal guilt stemming from “public authorities”. The Government found no basis for the existence of a positive obligation under Article 6 § 2 engaging the responsibility of public authorities for the newspaper ’ s activities. 45. Moreover, as was clear from the newspaper articles, the police did not at the time consider the applicant to be a suspect, but merely a witness. The police had not yet taken any such steps against him during the investigation phase or otherwise made any such indications of incriminating evidence against him as would suffice to consider the applicant as “charged” with a criminal offence within the meaning of Article 6 § 2 (see, inter alia, Serves v. France, 20 October 1997, § 42, Reports of Judgments and Decisions 1997 ‑ VI ). B. The Court ’ s assessment 46. The Court observes that no public authority had “charged [the applicant] with a criminal offence”, in the Banehia case, within the meaning of Article 6 § 2 of the Convention (cf. Allenet de Ribemont, cited above, §§ 34-37; Kyriakides v. Cyprus, no. 39058/05, § 35, 16 October 2008 ). While the information concerning the applicant in relation to the investigation in the Baneheia case had in part been provided by the police, it was the coverage by Fædrelandsvennen on 24 and 25 May 2000, not the statements by the police, which was at the heart of the matter before the national courts. In any event, the disputed newspaper publications did not amount to an affirmation that he was guilty of the crimes in question. In the Court ’ s view, Article 6 § 2 was inapplicable to the matters complained of. Accordingly, this part of the application must be declared inadmissible as being incompatible ratione materiae under Article 35 §§ 3 and 4 with the provisions of the Convention. 47. However, the conclusion above does not prevent the Court from taking into account the interests sought to be protected by Article 6 § 2 in the balancing exercise carried out below (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. With reference to the same facts as his complaint under Article 6 § 2 of the Convention, the applicant complained of a violation of his right to protection of reputation under Article 8 of the Convention. This article reads: “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 disputed the applicant ’ s complaint and requested the Court to declare it inadmissible as being manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention. A. Admissibility 50. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further considers 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 stressed that, according to established case-law, the safeguard afforded by Article 10 to journalists was subject to the proviso that they were acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 102, ECHR 2004 ‑ XI ). Special grounds were required in order to free the media from their general obligation in this respect. Whilst no such grounds existed in the present instance, the newspaper had offered no evidence suggesting that the applicant was guilty and had made no efforts to investigate the matter of its own. The newspaper had erred grossly: A was innocent. Thus the majority of the Supreme Court had failed to apply the correct test. 52. Moreover, the Supreme Court majority had deemed it acceptable that the newspaper invade the applicant ’ s privacy by publicising information about such details as the name of his work place, by publishing a photograph of him, taken from the side, while entering a bus on his way to work and another photo, taken from behind, depicting him walking home at a location close to his home. 53. For the applicant, the consequences of the newspaper report had been enormous. He could not continue in his job and had to move and live in a tent elsewhere, isolated and scared away from society. Whilst there obviously was a pressing social need to protect the applicant ’ s interests the Supreme Court failed to provide such protection and had failed to strike a proper balance between his right to protection of reputation under Article 8 of the Convention and Fædrelandsvennen ’ s freedom of speech under Article 10. 54. The newspaper should obviously have handled the applicant more carefully in its news reporting, considering that he in any event could most probably not have been the perpetrator. The Supreme Court ’ s majority had wrongly applied the Article 10 safeguard in favour of the newspaper in this case. 55. The Government ’ s submission with reference to paragraphs 76, 81 and 83 (quoted at paragraph 32 above) of the Supreme Court ’ s judgment that the latter had relied on the public interest in the publication as a “special grounds” was shallow. It in reality meant that a person who was trampled down or who was most in need of protection by the rule of presumption of innocence should enjoy no effective protection. As pointed out above; when the police had no reason for issuing a warning against the applicant and simply treated him as a witness, it was certainly not for the press to play the role of police. 56. More importantly, the Supreme Court should have considered that the newspaper did not handle adequately the information in the autopsy report which pointed away from the applicant. Whilst having referred to “monstrous sexual offences” in paragraph 82 of its judgment (quoted at paragraph 32 above), the Supreme Court had failed to consider that the applicant had never been involved in such crimes. The newspaper had clearly been negligent. The newspaper ’ s actions and the assessment made thereof by the Supreme Court thereof could not be regarded as complying with journalistic ethical standards laid down in the European Court ’ s case-law. 57. It was incorrect as stated by the Supreme Court in paragraph 83 of its judgment that the newspaper articles had been “balanced”. While it was true that the 24 May 2000 issue had quoted the applicant on top of the front page saying “I am completely innocent”, by publishing this peculiar interview, covering almost the upper half of the front page, the newspaper had actually made things worse. It had contributed to arise more suspicion against the applicant, not less. By describing him in the ensuing text on the front page as the “most interesting” person interviewed by the police, the newspaper in reality did not create a “balance” but rather imbalance to the applicant ’ s detriment. Also, on this point he shared the view held by the Supreme Court minority (in paragraph 95 of the judgment quoted at paragraph 33 above) that the so-called balancing had not improved matters, agreeing with the High Court ’ s findings that the coverage had made the suspicion against him stronger, not weaker. (b) The Government 58. The Government did not dispute that Article 8 was applicable in the present case but maintained that it had not been violated. In their view, the Supreme Court had struck a fair balance when protecting the two values guaranteed by the Convention which could come into conflict with each other in this type of cases, namely, on the one hand, freedom of expression protected by Article 10 and, on the other, the right to protection of reputation under Article 8. The Government thus concurred with the Supreme Court ’ s finding that the articles in Fædrelandsvennen had not been unlawful for the purposes of Articles 246 and 247 of the Criminal Code and that the applicant ’ s claim for non-pecuniary damages under section 3-6 of the Damage Compensation Act had accordingly been unfounded. 59. The Government further pointed out that in its reasoning dealing with the issue under the Convention, the Supreme Court had rejected the applicant ’ s argument that a shift had taken place in recent Strasbourg case-law, suggesting that the Court had attached greater importance to the protection of reputation in the assessment of whether an interference with freedom of speech was necessary for the purposes of Article 10 § 2 of the Convention. In the Government ’ s opinion, nothing to this effect was to be found in recent jurisprudence. For example, in Pfeifer v. Austria ( no. 12556/03, § 37, ECHR 2007 ‑ ... ), the Court had emphasised that in striking a fair balance between the competing interests, the national authorities enjoyed a certain margin of appreciation. 60. In its application of the principles in the Court ’ s case-law to the concrete circumstances of the case, the Supreme Court held that the impugned newspaper articles had concerned untrue, defamatory statements of fact, as they had left the ordinary reader with the impression that the applicant could be suspected of having committed the murders. On the facts, the Supreme Court noted the great public interest in the investigation of the rapes and murders of the two young girls and that it was clearly a matter of public interest for the readers of a local newspaper such as Fædrelandsvennen that a previously convicted killer, who had been the subject of security measures and who lived in the area, had been summoned by the police for questioning. The Supreme Court, having regard to the various factors stated in paragraphs 81 to 83 of its judgment, was satisfied that the impugned coverage had been presented in good faith with the requisite care and precautionary qualifications and was protected by Article 10 of the Convention. 61. Moreover, the Government, drawing attention to the outcome of a parallel case brought by the applicant against TV2 in respect of its television coverage of the same matter, clearly illustrated that possible suspects in criminal cases with heavy media coverage were not “free game”, but that they - according to circumstances - could attract the protection of Article 8 even in cases of great public interest, where the general public may have a legitimate need for information. The distinction made by the national courts had been based on a thorough and careful review of the facts of each case. 62. In the Government ’ s view, the difference of opinion between the majority and the minority of the Supreme Court in the present instance was one that clearly fell within the national margin of appreciation. 2. Assessment by the Court (a) General principles 63. The case raises essentially an issue of protection of honour and reputation as part of the right to respect for private life under Article 8 of the Convention. This provision, unlike Article 12 of the 1948 Universal Declaration of Human Rights and Article 17 of the 1966 International Covenant on Civil and Political Rights of the United Nations, does not expressly provide for a right to protection against attacks on a person ’ s “ honour and reputation ”. However, as the Court has stated on previous occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological or moral integrity of a person (see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22; Raninen v. Finland, judgment of 16 December 1997, Reports of judgments and Decisions 1997-VIII, § 63) and can sometimes embrace aspects of an individual ’ s physical and social identity (see Mikulić v. Croatia, no. 53176/99, § 53, ECHR 2002-I; for a more detailed summary of the case-law, see Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III, § 61). 64. In more recent cases decided under Article 8 of the Convention, the Court has recognised reputation (see White v. Sweden, no. 42435/02, § 26, 19 September 2006; and Pfeifer v. Austria, no. 12556/03, § 35, ECHR 2007 ‑ ... ) and also honour (see Sanchez Cardenas v. Norway, no. 12148/03, § 38, 4 October 2007) as part of the right to respect for private life. In Pfeifer (cited above, § 35), the Court held that a person ’ s reputation, even if that person was criticised in the context of a public debate, formed part of his or her personal identity and psychological integrity and therefore also fell within the scope of his or her “private life”. The same considerations must also apply to personal honour. In order for Article 8 to come into play, the attack on personal honour and reputation must attain a certain level of gravity and in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, § 49, ECHR 2004 ‑ VIII). 65. The question is whether the State has achieved a fair balance between the applicant ’ s “right to respect for his private life” under Article 8 and the newspaper ’ s right to freedom of expression guaranteed by Article 10 of the Convention (see Pfeifer, cited above, § 44; see also Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 ‑ VI, with further references). In examining this question, the Court will have regard to the State ’ s positive obligations under Article 8 of the Convention to protect the privacy of persons targeted in ongoing criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 37 above). It will also have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § § 68-71, ECHR 2004 ‑ XI ). 66. Against this background, bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in assessing the need to protect the applicant ’ s private life under Article 8 as opposed to that of safeguarding the newspaper ’ s freedom of expression under Article 10. (b) Application of these principles 67. From the outset it is to be noted that the applicability of Article 8 to the case was undisputed and the Court sees no reason to hold otherwise. The issue is whether the respondent State had failed to fulfil its positive obligation under this provision to protect the applicant ’ s honour and reputation as part of the right to respect for private life. 68. The Court observes that the disputed articles published by Fædrelandsvennen on 24 and 25 May 2000 were devoted to providing information about the preliminary police investigation into the murders, and in the latter article, also rape, of two young girls aged eight and ten respectively. In the news coverage under consideration, Fædrelandsvennen had stated that the applicant was “probably the most interesting of several convicted persons whose movements the police were now checking”. For the respondent newspaper, journalist and editor neither this statement nor any other elements in the news coverage contained an affirmation of suspicion against the applicant. However, the Supreme Court, agreeing with the High Court, found that the focusing on the applicant as a previously convicted knife killer, his presence in Baneheia when the criminal acts had been committed and the investigation of the applicant, must for an ordinary reader have been perceived as if he could be suspected of having committed the murders in question. 69. The Court sees no reason to disagree with the national courts ’ finding that, for an ordinary reader, this must have been perceived as if the applicant could be a suspect in the case and their finding that the coverage was defamatory of him. In this connection the Court has taken note of the fact that inside the 24 May 2000 issue, a Chief Constable had been quoted as saying that there had been no suspects in the case and that all of the persons who had been summoned for questioning had had formal status as witnesses. Also, both on the front page and inside, it had rendered the applicant ’ s claim of innocence stated in an interview with the newspaper. 70. Although the applicant had not been mentioned by name, the photographs and details of his places of work and residence had made it possible for persons who already knew him to identify him as a possible suspect of aggravated crimes of a particularly reprehensible and also sensitive (cf. White, cited above) character. While the news report consisted of imparting factual information about the investigation that was largely true, the way it was presented wrongly conveyed the impression that there was a factual basis justifying the view that the applicant could be considered a possible suspect. 71. It is obvious that the crimes in question because of their particular nature and gravity were a matter of utmost concern to the national public generally and to the local public especially, as observed by the national courts (see paragraphs 82 of the Supreme Court ’ s judgment quoted at paragraph 32 above). Not only did the press have the task of imparting such information but the public also had a right to receive it. However, the Court does not consider that the serious public interest in the subject matter could constitute such a special ground as to justify the defamatory allegation against the applicant with the consequent harm done to him. 72. The disputed media coverage was conducted in a manner which directly affected the applicant ’ s enjoyment of his right to respect for private live. As observed by the dissenting member of the Supreme Court, the applicant was persecuted by journalists against whom he found it difficult to protect himself. It appears that, in order to obtain his photographs and comments, the journalists followed the applicant in his footsteps inter alia on his way to his home and to his work place. The publications at issue occurred while the applicant, in a phase of rehabilitation and social reintegration after having finished serving a prison sentence and security measures for other and unrelated crimes committed in 1987, had a fixed abode and pursued gainful employment. After the publications he found himself unable to pursue his job and he had to leave his home and was driven into social exclusion. 73. There can be little doubt that the disputed publication entailed a particularly grievous prejudice to the applicant ’ s honour and reputation that was especially harmful to his moral and psychological integrity and to his private life (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media on relation to criminal proceedings quoted at paragraph 37 above). 74. The Court is mindful of the careful and thorough review carried out by the national courts of the various factors that are relevant under the Convention. However, there was not in the Court ’ s view a reasonable relationship of proportionality between the interests relied on by the domestic courts in safeguarding Fædrelandsvennen ’ freedom of expression and those of the applicant in having his honour, reputation and privacy protected. The Court is therefore not satisfied that the national courts struck a fair balance between the newspaper ’ s freedom of expression under Article 10 and the applicant ’ s right to respect for his private life under Article 8, notwithstanding the wide margin of appreciation available to the national authorities. 75. Accordingly, there has been a violation of Article 8 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage, on account of the hardship he had suffered following the news coverage by Fædrelandsvennen. It had delayed his reintegration into society and he had still not fully recuperated. He requested the Court to take into account that as a result of the media stir he had lost his job and had started to live in a tent, being scared away from society. Whilst he had not provided documentary evidence for his monetary losses, he requested that such losses have a bearing on the assessment of the size of the award for non-pecuniary damage. 78. The Government were of the opinion that the amount claimed was excessive. 79. The Court, assisted by the size of the award proposed by the dissenting members of the Supreme Court (see paragraph 101 of the dissenting opinion, quoted at paragraph 33 above) and making an assessment on an equitable basis, awards the applicant EUR 19,000 in respect of non-pecuniary damage. B. Costs and expenses 80. The applicant also claimed (a) NOK 388, 471.61 (NOK 1,180,630.12 less the NOK 792,158.51 granted in free legal aid by the national legal aid authority) for the costs and expenses incurred before the domestic courts. (b) Moreover, he claimed NOK 150,000 (approximately EUR 16,000) (inclusive of value added tax) for legal costs incurred in the Strasbourg proceedings. 81. As to item (a), the Government were of the view that awarding any sums beyond that granted in national legal aid was not warranted in the circumstances. Item (b) appeared excessive in the absence of any further specification. 82. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 12,500 for the proceedings before the Court. C. Default interest 83. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, finding that the Norwegian courts had failed to strike a fair balance between the newspaper’s freedom of expression and the applicant’s right to respect for his private life. The Court considered in particular that the news report had wrongly conveyed the idea that there had been facts pointing to the applicant as a suspect. While it had been undisputed that the press had the right to deliver information to the public, and the public had the right to receive such information, these considerations did not justify the defamatory allegations against the applicant and the consequent harm done to him. Indeed, the applicant had been persecuted by journalists in order to obtain his pictures and interviews, and in particular during a period in his life when he had been undergoing rehabilitation and reintegration into society. As a result of the journalistic reports, he had found himself unable to continue his work, had to leave his home and had been driven into social exclusion. The publications in question had therefore gravely damaged the applicant’s reputation and honour and had been especially harmful to his moral and psychological integrity and to his private life.