EHRM, 10-02-2009, nr. 3514/02

The applicants submitted that the present case, as well as other Supreme Court judgments restricting freedom of expression in the media, had received attention in Finland. A public debate had taken place, in which those judgments had been criticised. Furthermore, in December 2005 the Supreme Court had decided a case (no. 2005:136; see paragraph 31 above) which concerned another article published in the Alibi magazine. In that case, the majority of the Supreme Court judges had taken the view that the magazine had been entitled to publish the name of a convicted criminal. The incompatibility of that Supreme Court judgment with its judgment in the present case was, in itself, sufficient reason to find a violation. The applicants also observed that it was difficult for the Finnish media to report on legal proceedings because the domestic courts' decisions had made it difficult to predict when disclosure of the identity of a defendant or convicted person was within the sphere of freedom of expression and the public nature of legal proceedings and when, in contrast, disclosure constituted a criminal offence giving rise to a liability to pay damages. In the present case the Supreme Court had not even mentioned the Convention or Article 10 thereof. The names of accused and convicted persons were published daily in the Finnish media. There were no legal provisions defining when a defendant's identity could be revealed. In the present case, the applicant's actions had complied with the Guidelines for Journalists and no complaints had been lodged with the Mass Media Council (julkisen sanan neuvosto, opinionsnämnden för massmedier).

The applicants contested the Government's view that the interference was prescribed by law. They stressed that the impugned article concerned a public trial. The District Court had held at least nine hearings before the impugned article was published. The applicants were surprised that neither the Government nor the Supreme Court had mentioned the principle of the public nature of legal proceedings, given that the case related exclusively to the disclosure of the identity of a defendant in such proceedings. Finnish legislation contained no provision which required the accused person's consent prior to publication of his or her name or picture. At the relevant time the Constitution Act had not included a separate provision on the protection of privacy. The defendant's identity in a trial had never before been considered as belonging to a person's private life within the meaning of Chapter 27, Article 3a, of the Penal Code, and this principle still applied to public legal proceedings. For example, in its decision no. 2005:136 the Supreme Court majority had reached the opposite conclusion with regard to the publication of a convicted person's name, ruling that ‘a criminal offence is not the private matter of the individual who committed the offence’. In the applicants' view, the Government defined the concept of private life too broadly when they claimed that information was part of private life unless specifically found otherwise. This claim contradicted the provisions of the Public Nature of Court Proceedings Act.

The provision on invasion of privacy required that, in order to constitute a criminal offence, the publication of the information had to be unlawful and intentional and had to relate to a person's private life. The impugned article met none of these criteria. Firstly, the publication of public information, namely a person's identity, was a legal right. Secondly, being accused of an offence in legal proceedings was not part of a person's private life. Thirdly, the requirement of intent in criminal law was not met when a reporter had no idea that the disclosure of a defendant's identity could constitute a criminal offence. The Supreme Court's judgment in the present case was probably the first in Finnish history in which the opposite view had been upheld. The appellate court had found, in accordance with legal precedent until the present case, that reporting on charges which were the subject of public legal proceedings was legitimate, even though the information published could cause anguish to the defendant. The Guidelines for Journalists did not meet the ‘prescribed by law’ requirement since they could not be applied when deciding whether an act constituted a criminal offence. The applicants did not deny the ethical demands placed upon the profession by the Guidelines. They observed that, despite their legal rights, they had sought to protect X's identity in the article by crossing out her surname and her picture, but because of a printer's error, her face and surname had been shown.

The applicants argued that the protection of X's identity was not necessary in a democratic society. There was no pressing social need to depart from the established practice and regulations. In a democratic State, legal proceedings were public and a defendant's identity was public information; this also served to ensure the legal protection of defendants. The question of whether the disclosure of X's identity had been necessary for the purpose of dealing with a socially important matter was irrelevant, since the provisions on the public nature of legal proceedings were not associated with matters of social significance. In any event, the proceedings against X had significance for society. Offences of tax and accounting fraud did not belong to private life, and fraud concerning a disability pension amounting to almost FIM 2.5 million was a major offence. X had ultimately received a heavy sentence. The criminal charges against X had been significant enough to justify the publication of her name.

The applicants also pointed out that it was not easy to identify X from the impugned article. The only persons likely to have identified her were those in her immediate social circle. In any event, it was established practice that persons who allowed themselves to be interviewed could be discussed in the public domain, even if the context was different. In the present case, X herself had taken the initiative of having an article about herself published in another magazine eight years previously. As a result she had become known to a large group of people.

The Government conceded that the liability to pay damages amounted to an interference with the exercise of the applicants' right to freedom of expression. The interference was nonetheless prescribed by law, having a basis in Chapter 27, Article 3a, of the then Penal Code and section 10, subsection 1, of the Constitution Act in force at the material time. The grounds relied on by the Finnish courts were consistent with the legitimate aim of protecting X's private life.

The applicants had stated in their application that X could be identified, although not easily, in the reproduced article. In another part of their application they had stated that only X's immediate social circle could have identified her. The Government pointed out that the text of the earlier article which accompanied the 1997 article had mentioned X's full name as well as her domicile. In their opinion, a glance through the article sufficed to identify the person concerned. Furthermore, X's first name had been mentioned in the magazine's table of contents.

The Government emphasised that in the present case X was the owner of a small cleaning business and thus did not hold an important position such as a politician or an official. Her private life therefore enjoyed more protection. Moreover, the case concerned the abuse of social insurance (her own pension), which was not a very important matter in terms of public interest and did not therefore warrant publishing her name and photograph. By publishing the previous article concerning a house deal the applicant had been caused unnecessary additional suffering. Furthermore, it would have been possible to discuss the phenomenon without identifying an individual suspect.

The Government observed that the publication of names had never been usual in news reports on offences. In particular, the publication of the names of suspects or accused persons had not been considered to be consistent with good journalistic practice. They noted that self-regulation within the mass media played a role in defining the limits on the protection of honour and privacy. According to the Guidelines for Journalists, when reporting on offences, the publication of a name and other identifying information was justified only if it was in the public interest. The suspect's identity was not to be published in advance of a court hearing unless there were important reasons relating to the nature of the offence and the suspect's position to justify such a move.

Furthermore, the Mass Media Council in Finland, a body which examined complaints concerning both the press and the electronic media, had stated as far back as 1981, that the publication of names in connection with offences was justified only if required in the public interest.

The Government observed that the present application differed from the case of News Verlags GmbH & Co.KG v. Austria (no. 31457/96, ECHR 2000-I), which concerned the publication of a suspect's picture in connection with a report on offences (the sending of letter bombs to politicians etc., severely injuring several victims). In that case the media, other than the applicant company, were free to continue to publish the suspect's picture throughout the criminal proceedings against him. Moreover, it was not the pictures but only their combination with the text that interfered with his rights. The absolute prohibition on the publication of the suspect's picture went further than was necessary to protect him against defamation or against a violation of the presumption of innocence.

In the Government's opinion the question of who had taken the initiative of publishing the earlier article was irrelevant; this had also been the view of the Supreme Court.

Under the domestic legislation compensation may be awarded for suffering. The amount of compensation that could be awarded for non-pecuniary damage was to be based on an equitable assessment made by the relevant court within the limits of its competence.

As for the applicants' reference to the Supreme Court's decision no. 2005:136, the Government argued that it concerned the publishing of the name of a person convicted of a serious violent crime, not that of a suspect. The Supreme Court's judgment in the present case was in line also with other precedents (nos. 1997:80 and 81, 2000:54 and 2002:55).

The Court agrees with the parties that the award of damages constituted an interference with the applicants' right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

As to whether the interference was ‘prescribed by law’, the applicants argued that the names of accused persons were published daily in the Finnish media and that they had not therefore been able to foresee that the publication of X's name and photograph would render them liable in damages. The Government argued that the publication of names had never been usual in Finland in news reports on offences and that it had not been considered consistent with good journalistic practice to publish names of suspects or accused persons. The Court does not discern any ambiguity as to the contents of the relevant provision of the Penal Code (the spreading of information, an insinuation or an image depicting the private life of another person which was conducive to causing suffering qualified as invasion of privacy; see paragraph 22 above). Nor was Chapter 5, section 6, of the Tort Liability Act unclear (see paragraph 21 above). Having regard also to the domestic case-law on the subject, the possibility that a sanction would be imposed was not unforeseeable. The position taken in the Supreme Court's subsequent decision of 2005 does not detract from this position as the circumstances of that case concerning the conviction of a person of violent crime degrading the victim's human dignity (see paragraph 31 above) were significantly different. The Court therefore concludes that the interference was thus ‘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). The interference pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.

The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30). In assessing whether such a ‘need’ exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with a European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10 (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III).

Press freedom is of cardinal importance in a democratic society, the press having both a right and a duty to impart information and ideas on all matters of public interest and concern. Article 10 of the Convention does not, however, guarantee a wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article the exercise of this freedom carries with it ‘duties and responsibilities’, which also apply to the press. These ‘duties and responsibilities’ are significant when, as in the present case, there is a question of undermining the ‘rights of others’. 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 X had a right to be presumed innocent of any criminal offence until proved guilty (see Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 65). By reason of the ‘duties and responsibilities’ inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999-I).

The concept of private life includes elements relating to a person's right to their image and the publication of a photograph falls within the scope of private life (see Von Hannover, no. 59320/00, §§ 50–53 and 59, ECHR 2004-VI).

In the cases in which the Court has had to balance the protection of private life against freedom of expression, it has stressed the contribution made by photos or articles in the press to a debate of general interest (see Tammer v. Estonia, no. 41205/98, §§ 59 et seq., ECHR 2001-I; News Verlags GmbH & Co. KG v. Austria, cited above, §§ 52 et seq.; and Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, §§ 33 et seq., 26 February 2002). The Court thus found, in one case, that the use of certain terms in relation to an individual's private life was not ‘justified by considerations of public concern’ and that those terms did not ‘[bear] on a matter of general importance’ (see Tammer, cited above, § 68) and went on to hold that there had not been a violation of Article 10. In another case, however, the Court attached particular importance to the fact that the subject in question was a news item of ‘major public concern’ and that the published photographs ‘did not disclose any details of [the] private life’ of the person in question (see Krone Verlag GmbH & Co. KG, cited above, § 37) and held that there had been a violation of Article 10. Similarly, in a case concerning the publication by President Mitterrand's former private doctor of a book containing revelations about the President's state of health, the Court held that ‘the more time that elapsed, the more the public interest in discussion of the history of President Mitterrand's two terms of office prevailed over the requirements of protecting the President's rights with regard to medical confidentiality’ (see Editions Plon v. France, no. 58148/00, § 53, ECHR 2004-IV) and held that there had been a breach of Article 10.

While reporting and commenting on court proceedings, provided that they do not overstep the bounds set out above, contributes to their publicity and is thus perfectly consonant with the requirement under Article 6 § 1 of the Convention that hearings be public, it is to be noted that the public nature of court proceedings does not function as a carte blanche relieving the media of their duty to show due care in communicating information received in the course of those proceedings (see Council of Europe Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings; paragraphs 34 and 35 above). In this connection, the Court notes that the Finnish Guidelines for Journalists, as in force at the relevant time, stated that the publication of a name and other identifying information in this context was justified only if a significant public interest was involved (see paragraph 32 above).

The Court observes at the outset that the 1997 article recounted the facts of a criminal case pending before the District Court in which X was a defendant. The pictures of X were accompanied by a question (see paragraph 8 above): ‘It seemed legal, but … a woman entrepreneur cheated to obtain a pension of over 2 million marks?’ Reading the 1997 article as a whole, the Court cannot find that this statement was excessive or misleading as it was clearly phrased as a question. Furthermore, it is of importance that the depicted events and quotations in the article were taken from the public prosecutor's bill of indictment, which had become a public document the moment it was received by the District Court. In this case it is not in dispute that the reporting on the criminal case was based on facts. The article stated that charges had been brought against X and that the case was pending before the District Court.

There was no connection between the earlier article and the 1997 article other than the fact that they were about the same person. The situation described in the earlier article did not come within the sphere of any public debate. That being said, in the earlier article the applicant had willingly shared with the readers her personal experiences and had consented in this connection to having her photograph published. The 1997 article must be considered to have reproduced an article which was irrelevant to the subject under discussion, giving X's name and picture, which were thereby expressly communicated to the general public. It is however not for this Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). For the sake of clarity, it is not the initial publication of that article which is before the Court but its use as an illustration in the 1997 article.

The Court can accept that the purpose of the 1997 article was to contribute to a public discussion. The criminal case brought against X was selected as an example illustrating the problems involved. While it is perfectly legitimate to use individual cases to highlight a more general problem, the question is whether the applicants went too far when they communicated X's identity to the public. It is plain that X was not a public figure or a politician but an ordinary person who was the subject of criminal proceedings (see Schwabe v. Austria, 28 August 1992, § 32, Series A no. 242-B). The fact that she ran a relatively small cleaning firm and had given an interview eight years previously to a magazine, which had come about in circumstances apparently not discussed during the domestic proceedings or at any length before the Court, does not mean that she had knowingly entered the public arena (see, mutatis mutandis, Fayed v. the United Kingdom, 21 September 1994, § 75, Series A no. 294-B). X's status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life. The fact that she was the subject of criminal proceedings cannot remove from her the protection of Article 8 (see Sciacca v. Italy, no. 50774/99, § 28–29, ECHR 2005-I).

In order to assess whether the ‘necessity’ of the restriction of the exercise of the freedom of expression has been established convincingly, the Court must examine the issue essentially from the standpoint of the relevancy and sufficiency of the reasons given by the Supreme Court for requiring the applicants to pay compensation to X. The Court must determine whether the applicants' liability in damages struck a fair balance between the public interest involved and X's interests and whether the standards applied were in conformity with the principles embodied in Article 10 (see Nikula v. Finland, cited above, § 44).

The Court considers that the general subject matter which was at the heart of the article concerned — namely, the abuse of public funds — was a matter of legitimate public interest, having regard in particular to the considerable scale of the abuse. From the point of view of the general public's right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds supporting the need to encourage public discussion of the matter in general.

The Court observes that it is not evident that the Supreme Court in its analysis as to whether the applicant's privacy had been invaded attached any importance to the fact that the information given was based on a bill of indictment prepared by the public prosecutor and that the article clearly stated that the applicant had merely been charged.

Nor is it apparent what significance the Supreme Court attached to the publication of X's photographs together with her name. The publication of a photograph must, in the Court's view, in general be considered a more substantial interference with the right to respect for private life than the mere communication of the person's name. As the Court has held, although freedom of expression also extends to the publication of photos, this is an area in which the protection of the rights and reputation of others takes on particular importance (see Von Hannover, no. 59320/00, §§ 50–53 and 59, ECHR 2004-VI). Nor did the Supreme Court analyse the significance of the fact that the photographs had been taken with the applicant's consent and with the intention of their being published, albeit in connection with an earlier article and a different context.

Having regard to the foregoing the Court concludes that the grounds relied on, although relevant, were not sufficient to justify the interference with the applicants' right to freedom of expression, in terms of a ‘pressing social need’.

There has therefore been a violation of Article 10 of the Convention.