Journalists and publishing companies
II. RELEVANT DOMESTIC LAW 17. Chapter 24 (531/2000), Article 9, of the Penal Code ( rikoslaki, strafflagen ) reads as follows: “ A person who (1) spreads false information or 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) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph (1), shall be sentenced for defamation to a fine or to 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 a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs (1) and (2). ” 18. Article 10 of the same Code provides that if, in the defamation referred to in Article 9, the offence is committed by using the mass media or otherwise by making the information or insinuation available to a large number of people, the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for a maximum period of two years. 19. Section 39 of the Freedom of the Press Act ( painovapauslaki, tryckfrihetslagen; Act no. 909/1974), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material. 20. Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, domestic peace or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 21. The applicants complained under Article 10 of the Convention that their right to freedom of expression had been violated when they had been sentenced for aggravated defamation. 22. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 23. The Government contested that argument. A. Admissibility 24. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 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 applicants 25. The applicants claimed that the question of whether or not there had been a rape ultimately had no significance when assessing the necessity to restrict freedom of expression, as the applicants had had good grounds for publishing the case at the time of the publication: the applicants had relied on a number of sources including a written statement submitted by the rape victim and verified by two witnesses, the article had dealt with a serious criminal offence, and although the rape suspicions had also been known to the local police, no investigation had been started. The article had not infringed the presumption of innocence of any of the players as no player had been mentioned by name. It had also become apparent from the article that the victim had not wanted the police to investigate the matter. The magazine had published a reply given by the players in its next issue in which all the players had denied being guilty of a crime. 26. The applicants pointed out that the fact that the victim had later withdrawn her identification of one named offender did not have any significance as far as the applicants'responsibility was concerned as they knew nothing about the said withdrawal, which took place a year after the publication of the article. It was undisputed that during the police investigation the victim had still maintained that the rape had taken place and that the investigation had only been suspended, and not terminated for good, since the victim had not been able and/or willing to contribute to solving the matter. 27. The applicants maintained that it was undisputed that the police and other people had been aware of the suspected rape prior to the publication of the article. It was also undisputed that although the act had been subject to public prosecution, the police had not started or even tried to launch a pre-trial investigation into the matter prior to the publication of the article. It did not make any difference whether the events had been actively concealed or whether that had been the result of the indifference of the persons who knew about the events, since the result had been that the information had in fact been concealed. (b) The Government 28. The Government agreed that the conviction of the first and second applicants and the obligation of all applicants to pay damages and costs had amounted to an interference with their right to freedom of expression. 29. As to the requirement that that interference be “prescribed by law”, the Government pointed out that the applicants had not questioned this. In any event, the measures in question had had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 2 4, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had had a legitimate aim, namely the protection of the reputation or rights of others. 30. As to the necessity requirement, the Government maintained that the first and second applicants had been convicted by the domestic courts for having presented false information concerning the players of the Finnish baseball winning team as they had reported on the Internet site of a nationwide magazine and in an article published in that magazine that players of the team had raped a female student. The text on the front page of the magazine as well as the headline and the text of the article had clearly indicated that the rape had been a fact that had actually taken place. The article had not mentioned any players of the team by name and the suspicion had thus covered them all. The players came from a small town where they and their families were well known and could thus be identified from the article. The rape suspicion had thus been conducive to complicating the everyday life of the players and their families. However, as the defamation had been directed at all players of the team and they could receive compassionate support from each other, the District Court took this into account by reducing the amount of compensation awarded for their suffering. 31. The Government observed that the only source confirming the alleged rape had been the statement made by the victim. No attempts had been made by the applicants to contact the victim or the players or their club. The present case was not about revealing journalistic sources but about the obligation to verify a factual allegation. The alleged rape had not at any stage been proved to have taken place. The alleged victim had withdrawn her allegation of being able to identify those involved in the rape. The pre-trial investigations had started after the article was published but as the victim had not been able to clarify either the events or the offenders, the pre-trial investigation had to be interrupted. It had not been shown that information about the alleged rape had been concealed. In the article itself the passivity of the police had not been mentioned nor had the police's or anyone else's conduct been questioned. The article itself had not contributed to any discussion of social significance in the present case. The factual basis of the article on which the applicants had relied had not been sufficiently accurate and reliable to be considered proportionate to the nature and degree of their allegations. The fact that a reply had been published later on did not give the players an effective opportunity to defend themselves as the damage to their reputation had already occurred. 32. The Government concluded that the measures in question, the conviction and the order to pay damages and costs, had been “proportionate to the legitimate aim pursued” and the reasons adduced by the courts to justify them had been “relevant and sufficient”. 2. The Court's assessment 1. Whether there was an interference 33. The Court agrees with the parties that the applicants'conviction, the fines imposed on them and the award of damages and costs concerning all applicants constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 2. Whether it was prescribed by law and pursued a legitimate aim 34. The Court notes that, according to the Government, the measures in question had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 2 4, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had a legitimate aim, namely the protection of the reputation or rights of others. The applicants did not question this. Therefore the Court concludes that the interference was “prescribed by law” (see Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 ‑ II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X, Eerikäinen and Others v. Finland, cited above, § 58 ) and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2. 3. Whether the interference was necessary in a democratic society 35. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII). 36. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I). 37. The Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). 38. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 ‑ I ). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298 ). 39. The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 ‑ I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65 ). 40. The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Bladet Tromsø and Stensaas v. Norway, cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas v. Norway, cited above, § 58). 41. One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II). 42. The Court notes that special grounds are required before a newspaper can be dispensed from its ordinary obligation to verify factual statements that are defamatory of private individuals. The question of whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the newspaper can reasonably regard its sources as reliable with respect to the allegations. The latter issue must be determined in the light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas v. Norway, cited above, § 66). 43. Turning to the facts of the present case, the Court notes that the first and second applicants were convicted on the basis of the remarks made in an article in their capacity as editor-in-chief and journalist, respectively. The Court notes that the issue which is essentially at stake in the present case is whether the domestic authorities struck the required balance between the applicants'right to freedom of expression and the right to reputation of the alleged perpetrators of a crime. 44. The Court observes at the outset that the article of 11 May 2001 was entitled “ A student raped at the baseball party”. In addition, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine. The article stated that a student had been raped by one of the baseball players of the local winning team, that several other players had participated in the incident but that it had finally been interrupted by one of the players. The events were described in the article in a very short and concise manner. It was also mentioned that the girl was above 18 years of age and that, for the time being, she did not wish to report the incident to the police. No other reference to the involvement or inaction of the police was made in the article. Moreover, it was mentioned that certain city officials, the management of the baseball team and its main sponsor knew about the incident. 45. The Court observes first that, in general, the article was written in an objective manner and its style was not sensational or gossip-like. The article did not mention the names of any of the persons involved in the incident nor were any photographs included. However, the players could be identified by the fact that they belonged to the local sports club, which was mentioned by name, and that they were members of the winning team of 2000. They could thus be identified in their home town, by baseball fans and by a larger public (see Selistö v. Finland, cited above, § 64) and therefore suffer damage to their reputation (compare and contrast Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 67). 46. The applicants claimed that they wrote about an issue of public interest, namely about a serious crime that had allegedly been committed by private persons and in respect of which no investigation had been started. However, the Court notes that the applicants did not mention this issue anywhere in the article, failing thus to demonstrate that the issue was of public interest. Moreover, the allegations were of a serious nature and were presented as statements of fact rather than value judgments. As regards the nature and degree of the defamation, the accusations of rape were found defamatory by the domestic courts because the accused were said to have committed a crime (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 66, Series A no. 239 ). Moreover, nothing in the article indicated that the city officials had tried to conceal the crime imputed to the members of the baseball team. 47. As to the reliability of the sources, the Court notes that the applicants based their article on the victim's statement given to the folk high school of K. which was corroborated by several witnesses interviewed by the applicants but who wished to remain anonymous. The Appeal Court found that the applicants had not been able to show that they had had sufficient reasons to believe that the accusations were true and that by not revealing their sources, they had taken the risk of being convicted of defamation. In this connection the Court recalls that protection of journalistic sources is one of the basic conditions for press freedom without which sources may be deterred from assisting the press in informing the public on matters of public interest (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009 ). However, the Court observes that in the instant case the applicants were at no stage required to disclose the identity of their sources. Moreover, they failed to take any steps to verify whether the accusation had a basis in fact, although they had the possibility to clarify the issue by contacting the victim, the players and their team. 48. As stated by the Appeal Court, the alleged rape was presented in the article as a fact although the criminal investigation only started after the publication of the article. Article 6 § 2 requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The Court therefore considers that the article violated the presumption of innocence of the players and defamed them by stating something as a fact which had not yet been established. 49. Moreover, the Court has taken into account the severity of the sanctions imposed on the applicants. It observes that the first and second applicants were ordered to pay sixty day-fines, amounting to EUR 3,540 and EUR 1,920 respectively. In addition, all three defendants in the domestic proceedings, together with the publishing company, were ordered to pay damages and costs and expenses jointly and severally in a total amount of EUR 89,000 plus interest, of which EUR 81,600 plus interest was attributable to the three applicants in the present case before the Court. However, it should be borne in mind that the amount of compensation to be paid by the applicants to the members of the baseball team was only EUR 4,000 or EUR 5,000 per member although there were twelve members in the team. For the Court, this approach must be seen as illustrative of the domestic courts'search for a proportionate response to the interference with the applicants'Article 10 rights. 50. Finally, the Court notes that in the instant case the first and second applicants were subjected to a criminal law sanction (for which, see for example Raichinov v. Bulgaria, no. 47579/99, § 50, 20 April 2006, and the case-law cited therein). In view of the margin of appreciation left to Contracting States a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008 ). Nevertheless, the Court notes that when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed. In this connection, the Court recalls that the imposition of a prison sentence for a press offence will be compatible with journalists'freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired, as for example, in the case of hate speech or incitement to violence (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). For the Court, similar considerations should apply to insults expressed in connection with a public debate. The Court would further observe that the Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay (Resolution Towards decriminalisation of defamation adopted on 4 October 2007). 51. The Court considers that the penalties in the present case, although they might be viewed as quite severe as such, were, seen against the background of the circumstances of the case, proportionate in regard to the competing interests at stake. The severity of the sentence and the amounts of compensation awarded must thus be regarded as falling within the respondent State's margin of response in the circumstances of the instant case. Nor can it be argued that the penalties imposed produced a “chilling effect” on media freedom seen in terms of investigative journalism and the right of the public to be informed of matters of public concern. The commission of a crime and the circumstances in which it is committed are matters of public concern. The Court's case-law, however, clearly illustrates that other imperatives have to be weighed in the balance before an incident is reported by the media to the public as fact. The Court has already underscored the importance of the presumption of innocence in this connection. The right to reputation of third parties is of equal importance especially where serious accusations of sexual misconduct are concerned. 52. In conclusion, the reasons relied on by the domestic courts, especially by the Appeal Court which in its judgment referred in particular to the Court's case-law, were sufficient to show that the interference complained of was “necessary in a democratic society”. Moreover, the sanctions imposed were proportionate. Having regard to all the foregoing factors, and in particular the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests involved. 53. Accordingly, there has therefore been no violation of Article 10 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the domestic courts had struck a fair balance between the competing interests involved, i.e. the applicants’ right to freedom of expression and the right to reputation of the alleged perpetrators of a crime. It observed in particular that imperatives other than matters of public concern had to be weighed up before an incident was reported by the media to the public as fact. The right to presumption of innocence and reputation of third parties was of equal importance especially where serious accusations of sexual misconduct were concerned.