EHRM, 19-09-2006, nr. 42435/02

The Court notes that this complaint 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.

The Government submitted that there was no indication that the Swedish courts, in striking the required balance in the present case, had failed to give sufficient weight to the applicant's rights under Article 8. They considered therefore that the case did not disclose a failure on the part of Sweden to secure the applicant's right to respect for his private life under that provision.

The applicant did not submit any observations.

The Court first finds that the publication of the impugned statements and pictures relating to the applicant falls within the scope of his private life, within the meaning of Article 8 § 1 of the Convention.

Noting that the applicant did not complain of an action by the State, but rather the lack of adequate State protection, the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals.

The boundary between the State's positive and negative obligations under this provision 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 competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references).

In the present case, the protection of private life had to be balanced against the freedom of expression guaranteed by Article 10 of the Convention.

Freedom of expression 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. This freedom under Article 10 is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, a constant thread running through the Court's case-law is the insistence on the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of 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. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Badsgaard v. Denmark[GC], no. 49017/99, § 71, 17 December 2004, with further references).

However, protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith, on an accurate factual basis, and provide ‘reliable and precise’ information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it ‘duties and responsibilities’, which also apply to the media even with respect to matters of serious public concern. Moreover, these ‘duties and responsibilities’ are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the ‘rights of others’. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations. Also of relevance for the balancing of competing interests which the Court must carry out, is the fact that, under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proven guilty (ibid., § 78, with further references).

Turning to the facts of the present case, the Court first notes that the Court of Appeal found that the information published inAftonbladet and Expressen, as such, constituted defamation of the applicant. It is thus important whether the journalists of the two newspapers may be considered to have acted in good faith and complied with the ordinary journalistic obligation to verify factual allegations and, in assessing the responsibility of the Swedish State, whether the courts made a reasonable and sufficient examination in this respect.

It is to be noted that the impugned articles mainly contained reports of allegations made by others, in particular Dirk Coetzee, a former senior official of the South African security police. As noted by the Court of Appeal, the journalists who wrote the articles had contacted journalist colleagues, public servants and representatives of various organisations in different countries and capacities in order to verify those allegations. After hearing six journalists as witnesses, the appellate court concluded that‘each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee's statements and to check with reliable sources who the person Anthony White was’. In this connection, regard should further be had to the fact that the newspapers in question also reported statements of individuals who rejected the allegations against the applicant, that Expressenpublished an interview with the applicant at the relevant time and thatAftonbladet had given him an opportunity to comment on the information published.

In view of the above, the Court considers that, in the series of articles, the newspapers endeavoured to present an account of the various allegations made which was as balanced as possible in the particular circumstances. Furthermore, having regard to the persons contacted in order to have the allegations verified, the journalists involved must be considered to have acted in good faith.

Moreover, in addition to the evidence given by the journalists, the Court of Appeal also heard Mr Coetzee personally and found him to be a credible person. In these circumstances, the court must be said to have made a thorough examination and had relevant and sufficient reasons to conclude that there was a reasonable basis for the publication of the statements and pictures in question.

Nevertheless, the published articles contained strong statements which designated the applicant as a serious criminal. It does not appear that he has been convicted of any of the offences ascribed to him. The statements clearly tarnished his reputation and, moreover, disregarded his right to be presumed innocent until proven guilty according to law.

The Court must therefore assess whether the domestic courts struck a fair balance between the two conflicting values guaranteed by the Convention, namely the protection of the applicant's reputation as part of his right to respect for his private life and the newspapers’ freedom of expression. In that respect, it needs to be ascertained whether the courts applied standards which were in conformity with the principles embodied in Articles 8 and 10 of the Convention.

To begin with, the Court considers that the domestic standards concerning the exclusion of liability for defamation by means of printed matter, as laid down in the relevant provisions of the Freedom of the Press Act and the Criminal Code are, as such, in conformity with Convention standards. Moreover, the Court of Appeal clearly recognised the conflict between the two opposing interests and applied the domestic legal provisions by weighing the relevant considerations in the case.

Regarding the effect which the publication had on the applicant's private life, the Court of Appeal found that the published information had been liable to expose him to the contempt of others and, as such, was defamatory. It further concluded, however, that the evidence in the case showed that the applicant was well known in southern Africa and among representatives of organisations for the protection of animals and the conservation of nature, and that within certain groups it was known that he had engaged in the alleged activities. The appellate court therefore considered that he was not an ordinary private person in respect of whom there was a particular need of protection.

The Court of Appeal balanced the applicant's interests against the public interest in the relevant matters, namely the unsolved murder of the former Swedish Prime Minister Olof Palme and, especially, the so-called ‘South Africa trail’ in the criminal investigation. Undoubtedly, both the murder of Mr Palme and that particular avenue of investigation were matters of serious public interest and concern. As such, there was little scope for restricting the communication of information on these subjects.

Having regard to what has been stated above, the Court finds that the domestic courts made a thorough examination of the case and balanced the opposing interests involved, in conformity with Convention standards. In the circumstances of the case, they were justified in finding, in their discretion, that the public interest in publishing the information in question outweighed the applicant's right to the protection of his reputation. Consequently, the Court cannot find that there has been a failure on the part of the Swedish State to afford adequate protection of the applicant's rights under Article 8 of the Convention.

There has accordingly been no violation of that Article.