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TONSBERGS BLAD AS AND HAUKOM v. NORWAY - 510/04 [2007] ECHR 186 (1 March 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/186.html
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[2007] ECHR 186
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FIRST
SECTION
CASE OF TØNSBERGS BLAD AS AND HAUKOM v. NORWAY
(Application
no. 510/04)
JUDGMENT
STRASBOURG
1
March 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Tønsbergs Blad AS and Haukom v. Norway,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 8 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 510/04) against the Kingdom of
Norway lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a limited liability company established under
Norwegian law, Tønsbergs Blad A/S, which publishes the
newspaper Tønsbergs Blad, and its former editor, Mrs
Marit Haukom, who is a Norwegian national (“the applicants”),
on 23 December 2003.
The
applicants were represented before the Court by Mr P.W. Lorentzen,
a lawyer practising in Bergen. The respondent Government were
represented, as Agent, by Mr Erlend Haaskjold, Attorney General's
Office (Civil Matters).
The
applicants alleged a violation of Article 10 of the Convention on
account of the unfavourable outcome of defamation proceedings brought
against them by a person who had been portrayed in a news item
published by the newspaper on 8 June 2000.
On
3 May 2005 the Court decided to give notice of the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
A
hearing took place in public in the Human Rights Building,
Strasbourg, on 5 October 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr E. Haaskjold,
Attorney, Attorney-General's Office
(Civil
Matters), Agent,
Ms A.C. Haug, Attorney, Attorney-General's
Office
(Civil Matters), Adviser;
(b) for the applicants
Mr P.W. Lorentzen,
Advokat,
Mr T. Hatland, Advokat, Counsel.
The
Court heard addresses by Mr Lorentzen, Mr Hatland and Mr Haaskjold.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
first applicant, Tønsbergs Blad A/S, is the publisher of the
newspaper Tønsbergs Blad. The second applicant, Mrs
Marit Haukom, is its former editor-in-chief. She is a Norwegian
national who was born in 1952 and lives in the city of Tønsberg
in southern Norway.
A. Background to the case
7. Tønsbergs
Blad is a regional newspaper covering primarily the city of
Tønsberg and eight surrounding municipalities in the County of
Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is
published six days a week. In 2002 it had a daily average circulation
of 33,314, corresponding to a 60% household coverage within its
primary circulation area.
In
a meeting held on 21 September 1999 the Standing Committee on
Development and Environmental Affairs (a politically appointed body
attached to the Municipal Council) of the Tjøme Municipality
asked the municipal administration to provide a survey of properties
whose owners were suspected of breaching permanent residence
requirements. Under section 5(3) of the Concession Act (Lov om
konsesjon ved erverv av fast eiendom) of 31 May 1974 (no. 19),
such requirements applied to the extent that it was deemed necessary
to prevent private properties intended for permanent residential use
from being transformed into holiday homes. Provisions to this effect
were further contained in Regulation (forskrift) no. 2089
of 14 December 1984, issued under the above-mentioned Act in respect
of the Tjøme Municipality, one of the few municipalities in
Norway which applied permanent residence requirements for all-year
residences. The purpose was to fend off pressures exerted on the
local community by the exceptionally high demand for holiday homes in
the Tjøme area, an attractive holiday destination for a large
number of people residing notably in the Oslo region. There was also
a concern that too many residences were unoccupied during off-season
periods.
On
11 October 1999 the municipal administration drew up a list which was
entitled “Properties which should be verified in relation to
the residence requirements. (Not public)”. It was a tip-off
list based on information from inhabitants and local politicians in
the Municipality and was presented to the Standing Committee at a
meeting open to the public held the following day. The list included
the name of Mr Tom Vidar Rygh, who at the time was the Executive
Vice-President, the Head of Financial Investments and a member of the
Executive Board of Orkla ASA, one of Norway's largest industrial
companies.
The
property in question had been acquired in 1987 and Mr Rygh's wife
held title to it (a fact that was not deemed significant in the
defamation proceedings summarised below). An all-year residence had
been erected on the property in 1988 and the Rygh family had used it
as their main residence for 10 years until 1998, when they had moved
to Oslo because of Mr Rygh's professional situation. Before
that, they had been given legal advice that using the property solely
for holiday purposes would not conflict with the residence
requirements under the relevant national law.
Mr
Terje Wilhelmsen, a journalist, became aware of the process initiated
by the Tjøme Municipality and received a copy of the
above-mentioned list. He had a close network of contacts within the
Municipality. From autumn 1999 he made a number of enquiries to the
Municipality on the subject. On 7 June 2000 the journalist
interviewed the director of the Municipality's Planning and Building
Department (leder for plan- og bygningssaker), Mr Dag Dreyer
Sæter.
B. The contested publication of 8 June 2000, subsequent
exchanges between those concerned and other publications
On
8 June 2000 the newspaper published as its main story an article
written by Mr Wilhelmsen, which gave rise to the defamation
proceedings brought against the applicants by Mr Rygh. On the front
page there appeared an introduction to the article under the headline
(all quotations below are translations from Norwegian):
“May be forced to sell”
and the sub-heading
“[H.K.] and Tom Vidar Rygh will have to explain
themselves on permanent residence requirements”
The introduction read:
“Permanent residence requirements: In the
worst-case scenario [H.K.] may be forced to sell her property at
Hvasser [an island next to Tjøme]. The same applies to Orkla
director Tom Vidar Rygh. According to the understanding of Tønsbergs
Blad, their properties are on a list which the Tjøme
Municipality will submit to the County Governor [Fylkesmannen]
in the very near future. The list includes properties whose use is
thought not to be in conformity with the permanent residence
requirements.
Taking action: The Tjøme Municipality will
now take a firm line towards house owners within the Municipality who
do not comply with the permanent residence requirements. For a long
time there has been a zero limit on concessions at Tjøme. This
means that all-year residences must be inhabited all year. Those who
breach this requirement may be forced to rent out or to sell their
property. This is confirmed by the director of the Planning and
Building Department, Mr Dag Dreyer Sæter.”
The
front page also contained photographs of Mrs H.K. (a famous singer)
and of Mr Rygh.
The
article continued inside the paper on page 3 with the following
headlines:
“Tjøme hunts for permanent residence
sinners
[H.K.] and Tom Vidar Rygh may be forced to sell”
and
an introduction:
“TJØME: Both singer [H.K.] and Orkla
director Tom Vidar Rygh may be forced to sell their properties in
Tjøme. The reason is that, according to the Tjøme
Municipality, they do not comply with the permanent residence
requirements applicable to their properties.”
At
the top of page 3 the paper published photographs of Mrs Rygh's and
Mrs H.K.'s respective properties. Under the former photograph, to the
left, there was a caption:
“RESIDENCE REQUIREMENTS: Tom Vidar Rygh owns this
property in Sandøsund at Hvasser. The Tjøme
Municipality considers that the residence requirements are not
satisfied.”
Between
the two above-mentioned photographs there was a small photo of Mr
Rygh with this caption:
“MUST PROVIDE AN EXPLANATION: - It must be due to
a misunderstanding, says Tom Vidar Rygh”
The
article stated:
“The Tjøme Municipality is now in the
process of tightening up the obligation to comply with the residence
requirement in the municipality. A zero concession limit has long
since been introduced. This means that year-round properties must be
lived in all year.
Confrontation
In the near future the technical services department of
the Tjøme Municipality will approach the County Governor in
order to report its suspicion that the residence requirement is not
being fulfilled for a number of properties. It is then up to the
County Governor to confront the owners of these properties.
The director of the Planning and Building Department, Mr
Dag Dreyer Sæter, does not wish to comment to Tønsbergs
Blad as to which properties are on the list they are sending to
the County Governor. But from what Tønsbergs Blad has
been given to understand, the property of Tom Vidar Rygh at Sandøsund
on Hvasser island is on the list. The same applies to H.K.'s
property, which is at Nes on Hvasser.
Clearing up
'I cannot comment on individual properties at the
present time. First we must write to the County Governor. This will
occur in the near future.'
'But will the Tjøme Municipality now tighten up
the obligation to comply with the residence requirement?'
'Yes, indeed. This is an issue that has been discussed
at both the administrative and the political levels for some time.
Now we want to do something about it. We know that the residence
requirements are not being complied with for several properties in
the municipality. This is why we are now taking this initiative
vis-à-vis the County Governor. Now we want to get this
cleared up.'
Can be rented out
'What are the owners of these properties risking?'
'To begin with, they will have to explain themselves to
the County Governor. I would emphasise that it is not a requirement
that the owners themselves live in the properties. It is enough for
them to be rented out on a year-round basis. If this is not done,
there may be a question of enforced sale,' says the director of the
Planning and Building Department Dag Dreyer Sæter to Tønsbergs
Blad.
'Misunderstanding'
H.K. owns the property on Hvasser together with her
husband ... He does not wish to comment on the matter to Tønsbergs
Blad, in view of the fact that he has heard from neither the
Municipality nor the County Governor.
Tom Vidar Rygh told Tønsbergs Blad that if
his property on Hvasser was on the Municipality's list of properties
where the residence requirements are not being fulfilled, this had to
be due to a misunderstanding. Beyond that he did not wish to
comment.”
16. Below,
on the same page, Tønsbergs Blad published another
article based on interviews with local politicians:
“Residence requirements are a two-edged sword
TJØME: May-Sylvi Hansen, who is the leader
of the Conservatives on Tjøme Municipal Council, thinks that
the time is ripe for a new and thorough political debate on the
question of residence requirements.
Anne Vestad
'The whole question of residence requirements is a
two-edged sword', she says.
The Tjøme Conservatives have the maintenance of
the residence requirements in their manifesto, but at the same time
the party feels a need to have a broad political debate on the
question. May-Sylvi Hansen, who in addition to being the leader of
the Conservatives on Tjøme Municipal Council also sits on the
Planning and Environment Committee, tells Tønsbergs Blad
that at any rate she sees no reason for a tightening-up of the
obligation to fulfil the residence requirements now.
'The residence requirements issue is under discussion in
the Tjøme Conservative Party, and the question is whether we
should perhaps be a little more liberal in the time to come. But this
is a two-edged sword. On the one hand we don't want to see year-round
residences made into summer homes, but on the other hand we have had
considerable migration to Tjøme in recent years – the
population is growing fast,' says May-Sylvi Hansen.
Not a problem any more
'In the seventies and eighties the residence
requirements were entirely necessary in this municipality. But in my
opinion, after the big migration to the municipality began, empty
houses in the winter are no longer a problem. We should therefore
undertake a serious review of the whole issue of residence
requirements and ask whether, when all's said and done, it's just an
old bogeyman,' says Hansen.
Arne Fjellberg of 'The Tjøme List' independents,
who chairs the Planning and Environment Committee, does not agree
with May-Sylvi Hansen that the occupation provisions should be
liberalised.
'Must tighten up'
'I fully support the director of the Planning and
Building Department's view that it is necessary to tighten up the
obligation that the residence requirements be fulfilled. With the
mobility and flexibility that many now have in relation to their
work, it shouldn't be a problem to live in Tjøme even if you
work somewhere else. We want people to live in the houses of Tjøme,
make no mistake about that,' says Fjellberg.
'So you don't support May-Sylvi Hansen in her view that
it is time for a general rethink of the residence requirements?'
'The Tjøme List wants to retain the residence
requirements, but I'm willing to be a part of a discussion of the
residence requirement in general. It could surely be useful,' says
Arne Fjellberg.”
On
9 June 2000 Aftenposten, one of Norway's largest daily
newspapers, published a brief item on the matter, stating, inter
alia, that an Orkla director and a famous singer might be forced
to sell their properties, without specifying their names.
On
12 June 2000 Mr Rygh addressed a letter to the Tjøme
Municipality. Its Chief Executive Officer (Rådmannen),
Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which
stated inter alia:
“The Tjøme Municipality is working on a
survey of the status of the permanent residence requirements which
have been implemented at Tjøme under section 5(3) of the
Concession Act. Part of the reason why this work has started now are
the enquiries from a number of local residents. These are neighbours
to properties which are used, or should be used, for permanent
residence but which, according to these enquiries, are not being used
for this purpose. The list of properties that must be 'checked out'
has now become quite extensive. A number of the enquiries result from
the lack of knowledge about the contents of the regulations and the
circumstances pertaining to the relevant users. Consequently, these
properties are being checked out, which is an ongoing process. ...
Your wife's property has been reviewed in the same way,
and I can confirm that the property, on legal grounds, has now been
removed from the list.”
On
contacting the Tjøme Municipality on 29 June 2000, the
journalist Mr Wilhelmsen was informed that the Chief Executive
Officer had replied to Mr Rygh and that Mrs Rygh's property had been
removed from the list. Mr Wilhelmsen received a copy of the
above-mentioned letter of 22 June 2000.
On
30 June 2000 Tønsbergs Blad published an article
entitled
“No restrictions on new cottages
Tjøme Chief Executive Officer points to major
loopholes in the Concession Act”
with
the following introduction:
“Escape: Singer [H.K.] and Orkla director
Tom Vidar Rygh escape the permanent residence requirements in the
Tjøme Municipality. They were included on the Municipality's
list of properties that were subject to residence requirements, but
have now been taken off. The reason is that they have built on their
land themselves. Thus, the residence requirements do not apply.
Major loopholes: Chief Executive Officer Gunnar
Hansø (picture) at Tjøme asserts that the Concession
Act is filled with holes the size of a barn door. He warns that the
Municipality will take up the issue with the Ministry of Agriculture.
By exploiting loopholes in the Concession Act, it is easy to get hold
of an entirely new holiday home at Tjøme. All you need to do
is to acquire a plot and build an all-year residence on it. Then no
one can require permanent residence.”
The
article continued on page 5, with the following headlines and
introduction:
“Residence requirements do not apply to new
houses
[H.K.] and Tom Vidar Rygh do not have to move to
Hvasser.”
“TJØME: Singer [H.K.] and Orkla director
Tom Vidar Rygh do not have to take up permanent residence in the
Tjøme Municipality. The reason: they have built on their
properties themselves. Thus the Concession Act does not apply. This
means that they do not have to reside here.”
In
addition the coverage contained photographs of Mr Rygh and Mrs. H.K.,
with captions stating that they had “escaped” the
residence requirements with regard to their properties. There were
also photographs of the properties, with captions stating “No
residence requirement” and adding that the properties, which
had previously been on the Municipality's list of properties not
complying with the residence requirements, had now been taken off the
list.
The
article reproduced an interview with the Municipality's Chief
Executive Officer, Mr Hansø, who was reported to have said
that he had absolutely no wish to comment on individual cases, but
confirmed that some had been cleared and removed from the list: “We
did this for legal reasons.” He had further stated, inter
alia, that it was unfortunate that the Concession Act, which had
loopholes the size of a barn door, did not apply to the purchase of
undeveloped sites, but only to properties with buildings on. In
practice, that meant that anyone building a year-round residence in
the Tjøme Municipality did not have to live in the house at
all and could not be forced to move in. They could use it as a summer
holiday cabin if they wished. It was not until the residence had been
used for a period as a year-round home that the residence requirement
would apply, but then only in the event of resale of the property. It
could not be fair that residence requirements applied to some
properties but not to others. To change this he would raise the
matter with the Ministry of Agriculture.
On
5 July 2000 Tønsbergs Blad published an article
containing, inter alia, an interview with a former Minister of
Agriculture, who stated that the loopholes in the Concession Act that
had been detected in Tønsbergs Blad's articles were
“completely unreasonable” and should be amended.
On
5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in
writing his dissatisfaction with its 8 June 2000 coverage, including
the fact that his name had been mentioned. The newspaper responded,
orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer
demanded that Tønsbergs Blad publish a rectification
and an apology. The newspaper replied that it had acted in
accordance with the ethics of journalism and that, immediately after
becoming aware that Mr Rygh's property had been removed from the
list, it had accordingly published an article on the front page and
had offered him space for his own viewpoints, an offer it had
maintained for a period thereafter. An interview with Mr Rygh had not
been published, as the newspaper had respected his decision that this
was not desirable.
In
a further article published on 8 August 2000, entitled “Tønsbergs
Blad clarifies”, the paper stated that the properties
belonging to Mrs H.K. and Mrs Rygh had been removed from the list in
question, that the requirements at issue did not apply to their
properties and that, accordingly, there had been no breach of the
permanent residence requirements with regard to these properties.
C. The defamation proceedings brought by Mr Rygh
On
15 September 2000 Mr Rygh instituted private criminal proceedings
(privat straffesak) before the Tønsberg City Court
(byrett). He requested that both the introduction on the front
page and the article on page 3 be declared null and void under
Article 253 of the Penal Code, that Tønsbergs Blad and
its editor-in-chief (at the time of publication Mrs Marit Haukom) be
punished under Articles 247 and 431 respectively of the Penal Code
and that the newspaper and its editor-in-chief be ordered to pay
compensation for non-pecuniary damage under section 3-6 of the Damage
Compensation Act 1969.
By
a judgment of 13 September 2001 the City Court acquitted the
applicants and ordered Mr Rygh to pay 183,387 Norwegian kroner (NOK)
in respect of their costs. It found that a defamatory allegation had
been made but, with reference to Article 10 of the Convention,
attached special importance to the public interest of the permanent
residence issue and to the freedom of the press in respect of
presentation and form.
On
26 September 2001 Mr Rygh appealed against the judgment to the Agder
High Court (lagmannsrett).
By
a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in
part.
As
to the first issue, whether the impugned statements amounted to
defamation for the purposes of Article 247 of the Penal Code, the
High Court observed that it agreed with the City Court that, when
considering the 8 June 2000 article in isolation and as a whole,
the allegations in question must be understood to mean that the
Municipality, after having made a specific assessment of the relevant
properties, had taken the stance that a breach of the residence
requirements had occurred with regard to Mr Rygh's property, among
others, and that his name had therefore been entered on a list which
the Municipality had decided to transmit to the County Governor for
further processing. The report should therefore be perceived by the
ordinary reader as an allegation that Mr Rygh had breached the
obligation of residence.
As
to the question whether this amounted to a defamatory accusation, the
High Court held that a breach of the residence requirements did not
constitute a criminal offence but that, in a place like Tjøme,
many people would regard it as being immoral and an affront to the
public interest. The High Court agreed with the City Court that the
accusations were not of the most defamatory kind but, not least in
view of the strong personal angle of the report, the High Court found
that it was capable of damaging Mr Rygh's good name and reputation.
An examination of whether it was capable of causing a loss of the
reputation required for the exercise of his profession was not
necessary.
The
High Court did not find that the applicants had adduced sufficient
proof of the defamatory accusation under Article 249 § 1 of the
Penal Code to avoid liability for defamation under Article 247. In
this connection it observed:
“It is correct that Tom Vidar Rygh's name was
mentioned on a list drawn up in October 1999 by the administration of
the Tjøme Municipality for its Standing Committee on
Development and Environmental Affairs. The heading of the list reads:
'Properties which should be verified in relation to the residence
requirements'. Further, it was noted that the list was not public.
Had the Tønsbergs Blad limited itself to stating this,
it would have made an accusation that was true. ... Mr Rygh's name
was put on the preliminary 'tip-off' list, based on tip-offs from
inhabitants, local politicians and others. The High Court has no
doubt that a number of local inhabitants could have believed that the
residence requirements were breached in so far as Rygh's property was
concerned, given the fact that it concerned an all-year residence
which had been vacated and used as a holiday home. The mayor of the
municipality has explained that he was of the opinion that the
permanent residence requirements were breached, as has Mr Sæter,
the director of the Planning and Building Department. However, Mr
Sæter explained in the proceedings before the High Court that,
at that time, he had not conducted a further investigation of the
property. His view that the property was subject to the permanent
residence requirements had been based on his belief that it had been
converted from an older residence. He was fully aware that permanent
residence requirements did not apply where a person had acquired an
open plot of land and then built a house on it. Mr Sæter also
explained that, when he had told the journalist Mr Wilhelmsen that a
list would shortly be submitted to the County Governor, he was aware
that the list would have to be examined first. According to the High
Court's understanding of Mr Sæter, there had been no further
elaboration of the preliminary tip-off list since autumn 1999. ...
Since Mr Sæter was well aware of the exception to the residence
requirements for new buildings on open plots of land, he would have
quickly discovered that no obligation of residence applied here. ...
The High Court further notes that to date none of the names that were
on the provisional tip-off list from the autumn of 1999 have been
transmitted to the County Governor because the Municipality believed
that there was a breach of the residence requirements.
The allegations made by Tønsbergs Blad on
8 June 2000 were therefore demonstrably inaccurate.”
The
High Court was divided as to the question whether the accusations
were unlawful (rettstridige). A majority of four members found
that that was the case, whereas a minority of three members agreed
with the City Court.
However,
a qualified majority of minimum five votes was required for finding
liability under Article 247 of the Penal Code. Mr Rygh's claim that
he had been the victim of unlawful defamation under Articles 247 and
431 by the newspaper and its editor-in-chief, respectively, was
therefore rejected.
On
the other hand, under Article 253 of the Penal Code, which required
only a simple majority, the High Court declared the following two
statements, published respectively on the front page and on page 3 of
the 8 June 2000 issue (see paragraphs 12 and 13 above), null and
void:
“Permanent residence requirements: In the
worst–case scenario [H.K.] may be forced to sell her property
at Hvasser [an island next to Tjøme]. The same applies to
Orkla director Tom Vidar Rygh. According to the understanding of
Tønsbergs Blad, their properties are on a list which
the Tjøme Municipality will submit to the County Governor in
the very near future. The list includes properties whose use is
thought not to be in conformity with the permanent residence
requirements.”
“...Tom Vidar Rygh may be forced to sell their
properties at Tjøme. The reason is that, according to the
Tjøme Municipality, they do not comply with the permanent
residence requirements applicable to their properties.”
The
High Court further decided that the applicants were jointly and
severally liable, under section 3-6 of the Damage Compensation Act
1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary
damage. The High Court in addition decided that no costs should be
awarded with respect to the proceedings either before the City Court
or the High Court.
The
applicants appealed to the Supreme Court against the procedure
followed by the High Court (saksbehandlingen), namely the fact
that the issue of nullification had been determined by a simple
majority, and against its application of the law (rettsanvendelesen).
On 4 September 2002 the Appeals Leave Committee of the Supreme Court
granted leave to appeal in so far as the latter ground was concerned
but refused such leave with respect to the former ground.
By
a decision of 1 July 2003 the Supreme Court dismissed the applicants'
appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal
costs. When deciding on the question whether to declare parts of the
newspaper article null and void, the Supreme Court applied Article 2
§ 3 of the Code of Criminal Procedure. This limited the scope of
the Supreme Court's review of the facts of the case (see further on
this below). As far as the question of non-pecuniary damage was
concerned, the appeal only referred to the application of the law.
Therefore, even though the Code of Civil Procedure was to be applied
in this regard, in accordance with Article 435 of the Code of
Criminal Procedure, the Supreme Court had to base its examination on
the same facts as the High Court in this connection too.
In
his opinion, to which three other members subscribed, Mr Justice
Støle held, inter alia:
“(33) I shall first look at how the
statements must be understood. It follows from case-law that the
interpretation is part of the application of the law .... It is the
statements whose nullification is requested which are to be
interpreted. The question is how these must be assumed to have been
understood by the readers of the newspaper. Taking the wording as our
point of departure, we must then look at what perceptions the
statements create in the ordinary newspaper reader. In my opinion
there is no conflict between the case-law of the European Court of
Human Rights and that of the Supreme Court as regards the subject
matter of the interpretation; see the references to 'the ordinary
reader' in the decisions of the European Court of Human Rights.
(34) The statements to be interpreted are
included in the newspaper's first story of 8 June 2000. In the
usual way the statements must be interpreted in context with the rest
of the news report, with its typography and use of pictures. Like the
High Court, however, I find it clear that the subsequent articles,
carried on 30 June and 8 August 2000, are not of significance for
this purpose. I shall return to the significance of the follow-up
reportage in another context. Here it is sufficient to show that
these are not suitable for shedding light on the meaning of the
statements whose nullification is being requested. ... The statements
in the story of 30 June 2000 are more of the nature of a description
of a subsequent development, namely that Mr Rygh has been 'cleared'
in the case. I would add – not that my standpoint depends on it
– that the distance in time to the article to which the
nullification claim applies is also materially greater than in Norsk
Retstidende ('Rt') 2002-764.
(35) The unanimous High Court has summarised
its interpretation as follows:
'When one accordingly considers the article of 8 June
2000 in isolation, the High Court agrees with the City Court that the
statements, seen in isolation and as a whole, must be perceived by
the ordinary reader as saying that the Municipality, after
considering the relevant properties, has taken the position that
there has been a breach of the residence requirements for, inter
alia, A's property, and that his name has therefore been written
down on a list that the Municipality has decided to refer to the
County Governor for further action. The story must appear to the
ordinary newspaper reader as a statement that Mr Rygh has breached
the residence requirements.'
(36) This by and large coincides with my own
view. The core of the accusation was that Mr Rygh found himself on a
list that the Tjøme Municipality had prepared, and which
contained the names of persons whom the Municipality considered to
have breached the residence requirements. I do not, however, concur
with the majority of the High Court that the story 'must appear to
the ordinary newspaper reader as a statement that Mr Rygh has
breached his residence requirements'. It is clearly apparent from the
article that it is the Municipality's opinion that is being reported,
and that the list is to be sent to the County Governor for decision.
(37) I agree with the High Court that the
statements, as interpreted, contain a defamatory accusation; see
Article 247 of the Penal Code. It is the first alternative in that
provision that is relevant, and the allegation that the Municipality
considered that the residence requirements had been breached was
liable to damage his 'good name and reputation'. An accusation of a
breach of the law of this nature must be regarded as defamatory. It
is the public's moral judgment of the act that is decisive, and it is
not a requirement that actual damage be demonstrated or
substantiated. The High Court found that no evidence of the truth of
the accusation was presented, and this conclusion is binding on the
Supreme Court.
...
(40) In the specific weighing of factors in
our case, the point of departure must be that Tønsbergs
Blad has published a defamatory accusation about factual matters,
namely that the Municipality had considered Mr Rygh's property under
the rules on residence requirements and was of the opinion that Mr
Rygh had breached the residence requirements. In this connection I do
not accord any independent weight to the fact that he was not the
holder of title to the property. The Supreme Court must find that the
accusation was untrue – that applies both to the Municipality's
alleged perception that the residence requirements had been breached,
and the allegation that Mr Rygh's name was entered on a list that the
Municipality, on the basis of such a perception, had prepared of
owners of properties in respect of which the residence requirements
were supposed to have been breached. As regards the facts, a
unanimous High Court has found that this was a provisional 'tip-off
list' based on tips from inhabitants and local politicians in the
Municipality. It had been drawn up by the municipal administration in
October 1999, and bore the title 'Properties which should be verified
in relation to the residence requirements. (Not public)'. The High
Court also noted that the Municipality, at the time the newspaper
published the article on 8 June 2000, had not 'undertaken any further
processing of the provisional tip-off list from the autumn of 1999'.
The Supreme Court is bound by this assessment of the evidence.
(41) The main rule in both Norwegian
defamation law and Article 10 of the European Convention on Human
Rights is that non-proven defamatory allegations of fact are not
protected by freedom of expression. As regards the European Court's
case-law, I refer to the judgment of 20 May 1999 in Bladet Tromsø
and Stensaas v. Norway (no 21980/93), § 66, and to
the judgment of 7 May 2002 in McVicar v. United Kingdom
(no. 46311/99), §§ 84 and 87; there must be special grounds
for departing from this main rule.
(42) There is also a distinction between
transmission of other people's untrue accusations and the media's own
presentation of non-proven defamatory allegations. Freedom of
expression stretches further to cover transmission, depending, inter
alia, on who has made the allegation that is transmitted. If it
is a report from a public authority, as in the Bladet Tromsø
case, freedom of expression enjoys stronger protection.
(43) In our case it cannot be found that the
newspaper has transmitted a defamatory accusation that was made by
others. The article gives no source for the accusation, and the
Supreme Court cannot depart from the High Court's (the majority's)
assessment of evidence with regard to the newspaper's having based
itself on an anonymous source in relation to the information that Mr
Rygh was on the list that was to be sent to the County Governor and
that his property was 'thus to be looked into with regard to a breach
of the residence requirements'. The reliance on anonymous sources
otherwise prevents the courts from testing whether the journalist
displayed due care by employing that source; see Rt 1987-764, p. 771,
and the European Court of Human Rights' judgment in McVicar, §
86. Referring to anonymous sources should therefore in this
connection be equated with accusations made by the newspaper without
giving sources. I will return later to the question of what grounds
the newspaper had at the time of publication for the truth of the
accusation.
(44) The decision in Rt-2002-764 and
the case-law of the European Court of Human Rights shows that the
specific weighing of factors must take into consideration several
criteria. Of these I would emphasise the degree of public interest,
the nature of the accusation, including whether the accusation is
classified as a 'value judgment' or a 'factual statement', whether it
is directed against a public person or a private individual, and the
degree of care, including the extent to which the media at the time
of publication had factual support for considering the allegation to
be true. In general, the protection of the expression will be
stronger if it concerns matters of public interest, value judgments,
imparting of information, a public person, and if there are strong
reasons for holding the allegation to be true. Contrariwise: if the
case concerns limited public interest, factual statements, the
media's own presentation, private persons and weak grounds for
holding the allegation to be true, the protection of the expression
will be weaker.
(45) That the expression containing the
accusation is of public interest is in my view a fundamental
criterion for regarding the media's own presentation of untrue
defamatory allegations against private individuals about factual
matters as being protected by freedom of expression.
(46) It is immediately clear that the
question of enforcement of the residence requirements for year-round
residences in a coastal municipality like Tjøme is of public
interest. For Tønsbergs Blad as the local newspaper in
the region, this was naturally a topic for critical coverage. The
fact that there existed a list of properties that there was a
question of referring to the County Governor must also be regarded as
being of interest for the residents of the region and the newspaper's
readership. Which properties or owners were on the list, on the other
hand, must in my opinion be regarded as of limited public interest.
If any of the individuals who were entered on the 'tip-off list' –
for example owing to their function, position of trust or
participation in the public debate – had had a special
connection to the issue of residence requirements, it might have been
different. It may well be the case that the modern news industry
makes considerable use of known persons to arouse the interest of the
readers. But I agree with the High Court that the fact that Mr Rygh
was a relatively famous person as the executive VP of Orkla does not
mean that he can automatically be regarded as a public person in
relation to the rules on residence requirements. The majority's
emphasis on his not having involved himself in the public debate on
this topic appears very consonant with the European Court of Human
Rights' reasoning in its judgment of 25 November 1999 in Nilsen
and Johnsen v. Norway (no. 23118/93), § 52, first
sub-paragraph, with its emphasis on Bratholm's 'participation in
public debate' as the central theme.
(47) I would then return to the question of
the journalist's due care in the publication, and view this in the
context of the use of an anonymous source and of what factual grounds
he had at the time of publication for considering the allegation
true. I would first remark that there did not exist any written
documentation from the municipality's processing of the matter that
could support the allegation, over and above what the unanimous High
Court has characterised as 'the provisional tip-off list'. As
mentioned, the Supreme Court must in my opinion base its decision on
what the High Court has found with regard to the use of an anonymous
source. I cannot therefore see that it can be found that the
newspaper had other sources or other grounds for its allegation that
Mr Rygh's name was on a list that the Municipality should 'in the
near future refer to the County Governor'. This was the basis for the
accusation that the Municipality considered that Mr Rygh had breached
the residence requirements. Even if use of anonymous sources is a
recognised tool of modern journalism, such use of sources will imply
a stricter requirement of due care. Moreover, in such a situation, it
must to a considerable degree be the newspaper's risk that the
factual information conveyed may turn out to be untrue.
(48) It is true that the same day the
newspaper carried an interview with the director of the
Municipality's Planning and Building Department, in which it was
confirmed that the Municipality would in the near future be sending a
list to the County Governor. But in my opinion the interview does not
allow the conclusion to be drawn that the Municipality's processing
was concluded and that a definitive list therefore existed. In this
connection I would not lay any particular emphasis on the fact that
representatives of the Municipality may – before consideration
of the tip-off list – have considered that the residence
requirement applied to the Rygh family's property. Nor did the
journalist claim to have based his story on information from these
people. Otherwise, in my view, there are generally grounds for
emphasising the big difference between being on a so-called tip-off
list that has not been considered by the Municipality and being on a
list that the Municipality has decided, after processing and
consideration, to refer to the County Governor, who is the central
government's supervisory and administrative authority.
(49) When Mr Rygh was contacted by the
journalist immediately prior to the newspaper's running the story on
8 June 2000, his reaction was that the whole thing had to rest on a
misunderstanding. Even if it is understandable that the newspaper may
have wanted a broader statement from Mr Rygh, I cannot see that he
can be blamed for his behaviour here. Without it having any
importance for my view on the question I am discussing here, I would
like to mention that it was subsequently discovered that Mr Rygh had
obtained legal advice on the residence requirements in connection
with his family's move to Oslo in 1998 in consequence of his work
situation in Orkla. As the situation must have appeared to him, when
he was contacted by the journalist immediately before the newspaper
ran the story on 8 June 2000, his reaction was in my opinion
understandable. The circumstance that I have mentioned here cannot in
any event mean that the journalist may be regarded as having acted
with due care.
(50) The articles that Tønsbergs
Blad carried on 30 June and 8 August 2000 are of negligible
significance for the questions I have now discussed. The stories came
a relatively long time after the initial article. And under Article
253 § 2 of the Penal Code, claims for nullification must be
rejected when the person making the accusation 'withdraws it before
the main hearing in a manner that the court finds satisfactory to the
aggrieved person'. Tønsbergs Blad has not, however,
requested the case to be dismissed from the courts, and I have no
occasion to enter into any discussion of this question. I would,
however, remark that Norwegian defamation law is based on the notion
that a withdrawal of an allegation has significance in relation to
the sanctions, and not the assessment of unlawfulness
(rettstridsvurderingen).
(51) As the case now stands, I cannot agree
with Tønsbergs Blad that the newspaper's follow-up
report means that there is on the whole a balanced presentation
suggesting that the statements in the story of 8 June 2000 cannot be
deemed unlawful. The story of 30 June 2000 was in particular angled
in such a way as to make it less appropriate as a modification of the
original statement's defamatory character; see the use of the
expression that Mr Rygh 'is escaping' the residence requirements. In
the discussion of 8 August 2000, under the headline 'Tønsbergs
Blad clarifies', there is a more neutral correction, but it is
not stated here either that Mr Rygh has not been on any list that has
been considered by the Municipality.
(52) By way of conclusion I see good reason
to emphasise: as will be apparent from what I have reproduced from
the first voting judge in Rt. 2002-764, in considering specific
statements the press's role as a central practitioner of freedom of
expression must be weighed against the interests of privacy,
including the reputation of the individual. When the expression
concerns a case of public interest, the role of the press as a
'public watchdog' means that interference with freedom of expression
requires a weighty justification. In our case it is the protection of
Mr Rygh's reputation that calls for the interference. The only way I
can see the situation is that Tønsbergs Blad could have
highlighted the residence requirements issue critically, as it did in
the reportage of 8 June 2000, without the strong focus on Mr Rygh
personally – a focus that rested on a deficient factual basis.
(53) In the light of this I have concluded
that the statements of which nullification is requested are not
protected by Article 10 of the Convention and that the request must
be granted. Since the special arguments regarding the compensation
claim for non-pecuniary damage have not been maintained, it follows
that this part of the judgment is also upheld.”
The
dissenting judge, Mr Justice Rieber-Mohn, stated:
“(56) ... I concur that in its news coverage of 8
June 2000 Tønsbergs Blad published a defamatory
statement – an accusation of a factual character – for
which there was no factual basis. I also agree with the first voting
judge that the core of the accusation is that Mr Rygh found himself
on a list that the Tjøme Municipality had drawn up, which
contained the names of individuals whom the Municipality considered
to have breached the residence requirements. This would, however –
assuming it was correct – not have been a final declaration
that there had been a breach of the residence requirements. For this
reason, among others, I agree with the minority of the High Court and
the City Court that the accusation lies in the lower stratum of what
can be covered by Article 247 of the Penal Code. I also have the
impression that the High Court's majority by and large agree with
this.
(57) When an untrue defamatory statement is
made, the point of departure is also clear under the European Court
of Human Rights' case-law concerning Article 10 of the European
Convention: the accusation is not protected by freedom of expression.
But exceptions to this may be contemplated. If the accusation is to
enjoy protection under freedom of expression, it must at the least be
demanded that the news coverage in which it is contained is of public
interest and additionally that the necessary care was taken by the
newspaper. I consider that these criteria were met in this case.
(58) There can be no doubt that the general
subject with which the newspaper was concerned, and with which the
news coverage of 8 June 2000 really dealt, namely compliance with the
rules on residence requirements, was and is of great public interest.
The question is whether it is in the public interest to publicise a
possible breach of the residence requirements on the part of Mr Rygh.
I would first mention that in modern journalism it is a common and
recognised method of popular education to illustrate general and
usually difficult questions by means of the roles and fates of
individuals, when they are considered especially relevant. When
individuals are unwillingly brought forward, and are subjected to
accusations of crime and so forth, a mass medium must have good
reasons for this, for example if the person concerned has sought out
the light of publicity in this area, or is a prominent person in
society who must accept that special demands are made of his
integrity and sense of responsibility to society. At the time in
question Mr Rygh belonged to the top management of one of the
country's biggest industrial conglomerates, and his name was not
unfamiliar in the news. In my opinion individuals who have sought
prominent positions in society, which require a special degree of
trust from the public, must to some extent accept that the media will
follow them with the eyes of Argus, not just in their professional
activities but also when, in the more private sphere, they challenge
laws and other regulations that are particularly meant to safeguard
the interests of society. It is therefore possible to conceive of
violations of the law by these individuals that in the circumstances
will be of public interest, even if the breach carries no criminal
responsibility or the penalties are minor. In this case the newspaper
thought that Mr Rygh had broken the rules on residence requirements,
which in public opinion was and is of major social importance, even
if such a contravention is not a criminal offence. I have difficulty
seeing that it was not a matter of public interest if such a very
prominent person as Mr Rygh had not complied with the residence
requirements with regard to his property in the Tjøme
Municipality.
(59) The question then becomes whether the
newspaper has acted with the requisite care. It must be noted that
the journalist used an anonymous source when he wrote that Mr Rygh
was on the Municipality's list of those who were considered to have
breached the residence requirements. It is undisputed that for a long
while Tønsbergs Blad had been working on this topic,
and that the journalist – who lived at Tjøme – had
been in contact with several representatives of the Municipality. It
must also be noted that the journalist, on application to the
Municipality, received confirmation that there existed a list that
the Municipality had drawn up, but the mistake was that this was a
list of individuals who, according to external tip-offs, had breached
the obligation, and not a list of individuals whom the Municipality
had already found to have breached it. The newspaper thus confused
the tip-off list, which contained Mr Rygh's name, with the list
that the Municipality was indeed to refer to the County Governor for
a decision on whether the residence requirements had been complied
with.
(60) I cannot see that the newspaper is much
to be blamed for this confusion. The journalist had reason to believe
that a municipal assessment had been carried out at that point. In
the story of 8 June 2000 the director of the Planning and Building
Department confirmed that technical services would 'in the very near
future' write to the County Governor regarding individuals whom the
Municipality suspected of breaching the residence requirements. The
director also stated: 'We know that the residence requirements are
not being complied with for several properties in the Municipality'.
And the director did not wish to say 'which properties are on the
list we are referring to the County Governor'. This last statement
gave the clear impression that the list which the Municipality had
assessed already existed. In addition, prominent representatives of
the Tjøme Municipality – such as the mayor and the
director of the Planning and Building Department – subsequently
stated that, at the time when the newspaper had carried the
controversial reportage, they had been of the opinion that Mr Rygh
was in breach of the residence requirements. This is clearly apparent
from the High Court's judgment, both the minority and majority
remarks. Tønsbergs Blad was therefore close to the
truth in its story of 8 June 2000. I would also mention that,
according to the story, the newspaper had approached Mr Rygh for
his view of the matter, but he did not want to comment beyond stating
that the fact that his name was on the list must have been due to a
misunderstanding.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
Under
Norwegian defamation law, there are three kinds of response to
unlawful defamation, namely the imposition of a penalty under the
provisions in Articles 246 and 247 of the Penal Code, an order under
Article 253 of the Code declaring the defamatory allegation null
and void (mortifikasjon) and an order under the Damage
Compensation Act 1969 to pay compensation to the aggrieved
party. Only the latter two were at issue in the present case.
Under
Article 253 of the Penal Code, a defamatory statement which is
unlawful and has not been proved true may be declared null and void
by a court. In so far as relevant this provision reads:
“1. When evidence of the truth of an
allegation is admissible and such evidence has not been produced, the
aggrieved person may demand that the allegation be declared null and
void unless otherwise provided by statute.”
Such
a declaration is applicable only with regard to factual statements,
the truth of value judgments not being susceptible of proof.
Although
the provisions on orders declaring a statement null and void are
contained in the Penal Code, such an order is not considered a
criminal sanction but a judicial finding that the defendant
has failed to prove its truth and is thus viewed as a civil-law
remedy.
Section
3-6 of the Damage Compensation Act reads:
“A person who has injured the honour or infringed
the privacy of another person shall, if he has displayed negligence
or if the conditions for imposing a penalty are fulfilled, pay
compensation for the damage sustained and such compensation for loss
of future earnings as the court deems reasonable, having regard to
the degree of negligence and other circumstances. He may also be
ordered to pay such compensation for non-pecuniary damage as the
court deems reasonable.
If the infringement has occurred in the form of printed
matter, and the person who has acted in the service of the owner or
the publisher thereof is responsible under the first subsection, the
owner and publisher are also liable to pay compensation. The same
applies to any redress imposed under the first subsection unless the
court finds that there are special grounds for dispensation...”
Conditions
for holding a defendant liable for defamation are further 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.
Further
limitations to the application of Article 247 are contained in
Article 249, which, in so far as is relevant, reads:
“1. Punishment may not be imposed under
Articles 246 and 247 if evidence proving the truth of the accusations
is adduced.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicants complained under Article 10 of the Convention that the
Supreme Court's decision of 1 July 2003 had entailed an interference
with their right to freedom of expression that could not be regarded
as necessary in a democratic society. Article 10 reads:
“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.”
The
Government contested that argument.
A. Admissibility
The
Court finds 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. Preliminary issue regarding the scope of the case
The Government pointed out that the Court was bound to
rely on the facts as established by the national courts and should
accordingly base its assessment and scrutiny on the same facts as
established by the Supreme Court, which were the same as those found
by the majority of the High Court. This related to the fact that the
article had given no source for the accusation, and therefore the
newspaper could not claim to have transmitted a defamatory accusation
which had been made by others.
The applicants contested the Government's contention,
which in their view was aimed at excluding evidence demonstrating
that the newspaper's coverage had, in essence, been accurate. The
applicants referred here to certain new evidence which they had
unsuccessfully sought to adduce before the Supreme Court: notably
declarations by the journalist, Mr Wilhelmsen, the director of
the Tjøme Municipality's Planning and Building Department, Mr
Sæter, and the mayor, Mr Tandberg, dated 28 January, 8 May
and 13 May 2003 respectively, about the identity of the journalist's
source(s) and the contents of the information provided by the
source(s), plus an additional declaration made by Mr Sæter on
an unintelligible date in 2003. On account of the national rules, the
appeal to the Supreme Court had been examined in accordance with the
rules of the Code of Criminal Procedure, with the result that the
Supreme Court was bound to base its decision on the same facts as the
High Court.
The
Court emphasises that a complaint is characterised by the facts
alleged in it, not merely by the legal grounds or arguments relied on
(see Powell and Rayner v. the United Kingdom, judgment of 21
February 1990, Series A no. 172, p.13, § 29). Within the scope
of the case, as delimited by the decision on the admissibility of the
application, the Court has full jurisdiction, which encompasses any
issue of fact or law that arises during the proceedings before it
(see Guerra and Others v. Italy, judgment of 19 February
1998, Reports of Judgments and Decisions 1998 I, p. 223,
§§ 43 and 44).
However,
the new evidence in question comprised statements by sources who were
anonymous during the proceedings before the High Court but who
thereafter waived their anonymity and gave written statements for
submission to the Supreme Court. Under the relevant national
procedural rules the Supreme Court was prevented from relying on new
evidence, unlike the City Court and the High Court, which had full
jurisdiction to assess the evidence. This limitation on the Supreme
Court's jurisdiction must have been foreseeable for the applicants.
Moreover, the new evidence significantly altered the substance of
their complaint under Article 10 of the Convention. As a result the
national courts were not given a proper opportunity to review from
the angle of Article 10 of the Convention the subject matter of the
applicants' complaint as altered by this new evidence, which is the
purpose of the requirement of exhaustion of domestic remedies in
Article 35 § 1 of the Convention. This provision also requires
that the complaints intended to be made subsequently at Strasbourg
must first be made to the appropriate domestic body, at least in
substance and in compliance with the formal requirements and
time-limits laid down in domestic law and, further, that any
procedural means that might prevent a breach of the Convention must
be used (see Cardot v. France, judgment of 19 March 1991,
Series A no. 200, p. 18, § 34; and Akdivar and Others
v. Turkey, judgment of 16 September 1996, Reports
1996 IV, p. 1210, § 66). Therefore, the Court
considers that the witness statements in question fall outside the
scope of its review and will accordingly not rely on them. If the
Court were to accept such new evidence, it could lead to the
unreasonable consequences of making it a forum for reopening of
national proceedings. Such a function would not be consistent with
its subsidiary role in the Convention protection system.
C. Merits
55. The
Court considers that the impugned measure constituted an
“interference by [a] public authority” with the
applicants' right to freedom of expression as guaranteed under the
first paragraph of Article 10, but that the interference was
“prescribed by law”, namely Articles 247, 431 and 253 of
the Penal Code and section 3-6 of the Damage Compensation Act 1969
(see paragraphs 41 to 47 above), and pursued the legitimate aim of
protecting “the reputation or rights of others”. It thus
fulfilled two of the three conditions of justification envisaged by
the second paragraph of Article 10.
The
dispute in the present case relates to the third condition –
whether the interference was “necessary in a democratic
society”.
1. Arguments of those appearing before the Court
(a) The applicants
The
applicants disputed the necessity of the measures ordered by the High
Court and upheld on appeal by the Supreme Court, which in their view
violated Article 10 of the Convention.
Firstly,
they submitted that no allegation had been adopted by Tønsbergs
Blad. In the article they had emphasised that the presentation
was “[a]ccording to the understanding of Tønsbergs
Blad”. It was apparent from the article that the
information provided emanated from officials within the Municipality.
For the most part, the newspaper was quoting from or directly
referring to interviews with named officials.
Secondly,
the statements contained in the article had not been presented as
undisputable facts. On the contrary, the newspaper had expressed
numerous reservations, after which no conclusion had been drawn in
respect of the Rygh family's compliance with the permanent residence
requirements. The Supreme Court had failed to take this into account.
In essence, the impugned statements implied that Mr Rygh was under
suspicion for potentially not complying with the permanent residence
requirements, a wording used in the article.
The
national courts, however, had derived another interpretation, which
from the applicants' point of view was stricter. The Supreme Court
had established that Mr Rygh had “found himself on a list
that the Tjøme Municipality had prepared, and which contained
the names of persons who the Municipality considered to have breached
the residence requirements” (see paragraph 36 of the Supreme
Court's judgment, quoted in paragraph 39 above). Subsequently, the
Supreme Court had “tightened up” its interpretation by
attributing to the applicants a more detailed knowledge of the form
of procedure followed by the Municipality, as it stated:
“...
the interview does not allow the conclusion to be drawn that the
Municipality's processing was concluded and that a definitive list
therefore existed.” (see paragraph 48 of the Supreme Court's
judgment quoted in paragraph 39 above)
The
Supreme Court had then made a distinction between being on a tip-off
list and being on a list “that the Municipality has decided,
after processing and consideration, to refer to the County Governor”
(see paragraph 48 of the Supreme Court's judgment quoted in
paragraph 39 above). Hence, the Supreme Court had found that the
applicants had anticipated the form of procedure followed by the
Municipality and thereby reinforced the allegation against Mr Rygh.
This assessment endorsed the Supreme Court's standpoint that “[a]n
accusation of a contravention of the law of this nature must be
regarded as defamatory” (see paragraph 37 of the Supreme
Court's judgment in paragraph 39 above). In essence, according to the
Supreme Court, the applicants had accused Mr Rygh of breaking the
law. This meaning had been derived by the Supreme Court, however, not
from the express terms but from the general tenor of the article.
This interpretation had been in contradiction to the numerous
reservations expressed in the article.
Moreover,
the applicants argued, the impugned statements should be read in
conjunction with the articles of 30 June and 8 August 2000, with the
result that all suspicions against Mr Rygh should be eliminated.
In
the applicants' opinion, the ordinary reader would expect a follow-up
to the article of 8 June 2000, particularly in the light of the
information provided that Mr Rygh would have to come forward with an
explanation. This was, in itself, a valid argument for extending the
period of time against which the impugned statements should be
assessed. As the article of 30 June 2000 was a natural and
predictable follow-up to the first article, this should also be taken
into consideration in terms of interpretation.
Furthermore,
the article of 8 June 2000 had been entirely accurate in its
presentation of the case. While it had been evident to the City Court
that the article in question had been based on interviews with
director of the Planning and Building Department and other officials
within the Municipality, the High Court, however, had attached
particular importance to the fact that no “further
investigation” of the Rygh property had been conducted by the
Municipality. However, the journalist had not been informed of this
at the crucial time. The Supreme Court had based itself heavily upon
the High Court's assessment and had pointed out that no source for
the impugned allegation had been presented in the article itself.
Should
the Court take the Supreme Court's interpretation as the point of
departure, the applicants still contended that Tønsbergs
Blad's coverage was, in essence, correct. Should the Court
instead fully endorse the Supreme Court's interpretation, the
applicants contended that the inaccuracies in the newspaper article
were, at the most, marginal. In this connection they relied on Mr
Justice Rieber-Mohn's dissenting opinion (see paragraph 60 of the
Supreme Court's judgment, quoted in paragraph 40 above):
“Tønsbergs Blad was therefore close to the truth
in its story of 8 June 2000.”
When
the story had been published, it was based on information from the
director of the Planning and Building Department that the list was
due for dispatch. The director of the Building Department had not
clarified in the interview of 7 June 2000 that the list had gone
without being processed since October 1999, or that the Ryghs'
property had not been specifically examined. No one had questioned
that the mayor and the director of the Tjøme Municipality's
Planning and Building Department were reliable witnesses. In the
applicants' opinion, it was therefore not relevant for the majority
of the Supreme Court to have elaborated on the reliability of
anonymous and potentially unreliable sources (see paragraph 47 of the
Supreme Court's judgment, quoted in paragraph 38 above).
The
applicants stressed that, in the present case, the interference did
not correspond to a pressing social need. The allegation had not been
a particularly defamatory one and had, in fact, been dispelled in the
following articles. No one could even suspect Mr Rygh, on the basis
of Tønsbergs Blad's article of 8 June 2000, of any
reprehensible conduct in this regard. He could easily and immediately
have corrected the conception formed by the Municipality simply by
providing information on the matter, for example by submitting the
legal opinion he had obtained.
The
articles had indeed focused on a matter of great public interest,
after which public debate had been reinforced, resulting in a public
discussion of the loopholes in the permanent residence requirements
and the need for an amendment of the Concession Act.
The
applicants acknowledged that the protection of a person's reputation
was a legitimate aim to pursue. However, given that there had been
minimal, if any, effect on Mr Rygh's reputation in the present case,
the interference with the applicants' rights was disproportionate. By
declaring the impugned statements null and void, the Supreme Court
had significantly worsened the operating conditions of local
newspapers by extensively limiting the use of reliable anonymous
sources and the use of examples to illustrate matters of public
interest.
Denying
the press any latitude in daily news coverage would in itself have a
chilling effect. In addition to declaring the impugned statements
null and void, the Supreme Court had ordered the applicants to pay Mr
Rygh compensation for non-pecuniary damage in the amount of NOK
50,000 and to reimburse his expenses in the amount of NOK 673,829.
This part of the interference was under no circumstances
proportionate to the aim pursued.
In
the applicants' opinion, by omitting to take into account a number of
significant arguments in its consideration of the case, the Supreme
Court had failed to strike a proper balance and to adequately assess
the necessity of the interference with their freedom of expression as
protected by Article 10 of the Convention.
(b) The Government
The
Government maintained that the interference complained of clearly
corresponded to a pressing social need. While the freedom of
expression was a fundamental right in a democratic society, it was
necessary to interfere with the exercise of that freedom where, as in
the present case, it was abused by directing false and harmful
accusations against a private individual. The national authorities
had, inter alia under Article 12 of the Universal Declaration
of Human Rights and Article 17 of the UN Covenant on Civil and
Political Rights, an obligation to protect private individuals
against unlawful attacks on their reputation. This obligation must be
given priority when the interference, as in the present case, had no
chilling effect on political debate.
The
Government emphasised that the Supreme Court's judgment had been
based on a correct interpretation of the allegations in question, in
conformity with the principles established by the European Court in
its case-law. The Supreme Court had correctly concluded that the
allegations had had an adverse effect on Mr Rygh's reputation, as
described in the High Court's judgment, and were defamatory. Since
the national courts were better equipped than the European Court to
assess the perceived meaning and effects of certain statements, these
were issues that should be left to the assessment of the national
courts. There was no reason for the Court to re-examine the Norwegian
courts' findings on this point.
Nor
was it for the Court to carry out a review of the High Court's
finding, made on the basis of the immediate evidence presented to it
in open court, that it was proven that the allegations were
demonstrably incorrect. The Court should take as a premise that the
Tjøme Municipality had never processed the list and that the
statements made in the article were therefore incorrect.
As
found by the Supreme Court, the allegations in question had been
based on an anonymous source. No other sources supported the
conclusion that Mr Rygh's name had been mentioned on a list that in
the immediate future was to be sent to the County Governor for
decision. The Supreme Court had correctly drawn a parallel to
situations where allegations were put forward without any source.
Moreover,
the applicants had taken no precautions before publishing the
article. The Supreme Court had correctly concluded that the
applicants had failed to act in good faith when publishing the
article. As followed directly from the Concession Act, persons in Mr
Rygh's situation were exempted from the permanent residence
requirements. Any possible misunderstanding in this respect could
easily have been avoided by simply reading the Act. Despite having
not worked under any time constraints, the newspaper had failed to
take sufficient steps to fulfil its obligation to verify the truth of
the factual allegation in question. The fact that Mr Rygh, on being
contacted by the newspaper before publishing the article, had stated
that the allegation must be due to a misunderstanding should have
resulted in a stricter duty of care for the newspaper. The
journalists' work had failed to meet the relevant standards of
journalistic ethics.
As
the applicants had made clear in their complaint, the implementation
of the permanent residence requirements had over the last few years
been the subject of great interest in the municipalities of Vestfold,
and in other parts of Norway as well. Tønsbergs Blad
was admittedly, as a regional newspaper, an important forum for
discussions of topical subjects such as the present one. However,
this had no bearing on the issue here. Tønsbergs Blad
could perfectly well have attracted the public interest by publishing
the article without mentioning Mr Rygh by name and printing his
picture. In spite of this, Tønsbergs Blad had still,
without any factual foundation, exposed him to public contempt as a
“residence sinner”. The interference in the present case
could not in any possible way have had a so-called chilling effect on
the public debate on permanent residence regulations.
The
Government further stressed that, for the purposes of the present
case, Mr Rygh ought to be regarded as a private individual. Neither
before the publication of the article, nor at any other material
time, had he participated in any way in the public debate on the
subject of permanent residence regulations or exposed himself to
public comment or criticism. His public exposure had been limited to
his positions as Executive Vice-President, head of financial
investments, and a member of the Executive Board of the Norwegian
company Orkla ASA. In no way had the allegations in question been
capable of contributing to a debate in a democratic society. The
allegations had exclusively concerned Mr Rygh's behaviour as a
private person and had no connection whatsoever with his position as
a business executive. Mr Rygh should
be regarded as a private individual in relation to the statements, to
be assessed within the stricter limits of acceptable criticism.
The
articles published on 30 June and 8 August 2000 were of no particular
importance. They had been published a relatively long time after the
disputed allegations had been made. The impression created, that the
Tjøme Municipality considered Mr Rygh to have breached the
permanent residence requirements, had by that time been firmly
established. Apparently, the applicants had not tried to correct the
false accusations set forth in the first article. On the contrary,
the subsequent articles had given the impression that Mr Rygh had
deliberately utilised a legal loophole.
In
the Government's opinion, private individuals like Mr Rygh must be
entitled to protection against false accusations of this kind,
especially where the accusations had no or only limited public
interest. Interference with press freedom as in the present case
would have no chilling effect on the public and political debate.
In
the light of the above, the Government contended that the respective
interests of the applicants and the public in imparting and receiving
false information regarding Mr Rygh's observance of the permanent
residence requirements were not such as to outweigh the
considerations relied on by the Supreme Court, which must be
considered relevant and sufficient for the purposes of Article 10 §
2. Moreover, in finding the allegations in question defamatory and
declaring them null and void, the Norwegian Supreme Court could not
be said to have placed an excessive or unreasonable burden on the
applicants. Regard should be had to the fact that the interference
had solely concerned the particular allegations in question and had
had no chilling effect on the public debate on the issue of permanent
residence regulations. The Supreme Court had struck a fair balance
between the fundamental right of freedom of expression, on the one
hand, and the legitimate interests of a democratic State in ensuring
that the rights and reputation of others be protected, on the other
hand. It follows from this that the interference had been
proportionate to the legitimate aim pursued. The disputed
interference had therefore been necessary for the purposes of Article
10 § 2 of the Convention.
2. Assessment by the Court
(a) General principles
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),
judgment of 26 April 1979, Series A no. 30, p. 38, § 62). 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 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.
One
factor of particular importance for the Court's determination in the
present case is the essential function the press fulfils in a
democratic society. Although the press must not overstep certain
bounds, in particular in respect 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 (see Jersild
v. Denmark, judgment of 23 September 1994, Series A no. 298, p.
23, § 31; and De Haes and Gijsels v. Belgium, judgment of
24 February 1997, Reports 1997-I, pp. 233 34, §
37). 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,
judgment of 26 April 1995, Series A no. 313, p. 19, § 38).
In cases such as the present one the national margin of appreciation
is circumscribed by the interest of democratic society in enabling
the press to exercise its vital role of “public watchdog”
in imparting information of serious public concern (see Goodwin v.
the United Kingdom, judgment of 27 March 1996, Reports
1996-II, p. 500, § 39).
In
sum, the Court's task in exercising its supervisory function is not
to take the place of the 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).
(b) Application of these principles
The
Court observes from the outset that the disputed statements consisted
of two introductory passages on the front page and on page 3 of the
Tønsbergs Blad's issue of 8 June 2000, which the High
Court, whose conclusion was upheld by the Supreme Court, declared
null and void under Article 253 of the Penal Code (see paragraph 36
above):
“Permanent residence requirements: In the
worst-case scenario [H.K.] may be forced to sell her property at
Hvasser [an island next to Tjøme]. The same applies to Orkla
director Tom Vidar Rygh. According to the understanding of Tønsbergs
Blad, their properties are on a list which the Tjøme
Municipality will submit to the County Governor in the very near
future. The list includes properties whose use is thought not to be
in conformity with the permanent residence requirements.”
“...Tom Vidar Rygh may be forced to sell their
properties at Tjøme. The reason is that, according to the
Tjøme Municipality, they do not comply with the permanent
residence requirements applicable to their properties.”
According to the findings of the Supreme Court, at the
heart of the impugned statements there was an allegation that Mr
Rygh's name appeared on a list drawn up by the Municipality of
persons whom the Municipality considered to have breached the
permanent residence requirements. That allegation was false and
constituted a public moral condemnation of Mr Rygh's conduct
that was defamatory within the meaning of Article 247 of the Penal
Code (see paragraphs 36 to 40 of the Supreme Court's judgment, quoted
in paragraph 39 above). The Court finds no reason to doubt that the
reasons relied on by the Supreme Court were relevant to the
legitimate aim of protecting the rights and reputation of Mr Rygh.
As
to the further question whether those reasons were sufficient for the
purposes of Article 10, the Court must take into account the overall
background against which the statements were made. In this regard it
notes that the purpose of applying permanent residence requirements
under section 5(3) of the Concession Act to all-year residences in
the Tjøme Municipality was to prevent private property used
for permanent residence from being transformed into holiday homes and
thus to ease the pressure on the local community. There was also a
wish to avoid depopulation of the Municipality during off-season
periods (see paragraph 8 above).
The
Court is not convinced by the Government's argument that the
portrayal of Mr Rygh in the article hardly corresponded to a public
interest worthy of protection under Article 10 of the Convention.
Whether or not a publication concerns an issue of public concern
should depend on a broader assessment of the subject matter and the
context of the publication. The newspaper article of 8 June 2000 had
its background in concerns by local inhabitants and politicians about
the failure of certain property owners within the Municipality to
comply with applicable residence requirements. There was also a
perception that affluent persons had found ways of circumventing or
exploiting loopholes in the rules. That had led the applicant
newspaper to highlight the coverage by focusing on two prominent and
well-known personalities, one, Mr Rygh, from the world of industry
and the other, Mrs H.K., from the world of culture. The Court does
not find that the article was intended to damage Mr Rygh's reputation
(see Bladet Tromsø and Stensaas v. Norway [GC], no.
21980/93, § 63, ECHR 1999 III). Rather, the
purpose was to illustrate a problem that the public had an interest
in being informed about. His name (like that of Mrs H.K.) had
featured on the provisional tip-off list drawn up by the Municipality
of names of persons suspected by local inhabitants and politicians of
having breached the residence requirements. While it is true that the
information published about Mr Rygh did not directly address his role
as an industrial leader, the Court is unable to agree with the
Government's suggestion that it related exclusively to his private
life. The Court shares the opinion of the dissenting judge of the
Supreme Court, Mr Justice Rieber-Mohn (see paragraph 40 above),
that a possible failure of a public figure to observe laws and
regulations aimed at protecting serious public interests, even in the
private sphere, may in certain circumstances constitute a matter of
legitimate public interest (see Fressoz and Roire, cited
above, § 50). It also agrees with the dissenting judge that
such circumstances obtained in the present case.
The
most careful scrutiny on the part of the Court is called for when, as
in the present case, the measures taken or sanctions imposed by the
national authority are capable of discouraging the participation of
the press in debates over matters of legitimate public concern (see
Jersild, cited above, pp. 25-26, § 35; and Bergens
Tidende and Others v. Norway, no. 26132/95, § 52,
ECHR 2000 IV).
The
Court observes in this connection that protection of the right of
journalists to impart information on issues of general interest
requires that they should act in good faith and on an accurate
factual basis and provide “reliable and precise”
information in accordance with the ethics of journalism (see, for
example, Goodwin, cited above, p. 500, § 39; Fressoz
and Roire cited above, § 54-I; Bladet Tromsø and
Stensaas, cited above, § 65; and Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 78,
ECHR 2004 XI). 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. These “duties and
responsibilities” are significant 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 (see, among other authorities,
McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR
2002-III; Bladet Tromsø and Stensaas, cited
above, § 66; and Pedersen and Baadsgaard, cited above,
§ 78).
The Court will consider the newspaper report as a
whole and have particular regard to the words used in the disputed
parts of the report and the context in which they were published, as
well as the manner in which it was prepared (see Sürek v.
Turkey (no. 1) [GC], no. 26682/95, § 62,
ECHR 1999 IV). The Court must examine whether the
applicants acted in good faith and complied with the ordinary
journalistic obligation to verify a factual allegation. This
obligation required that they should have relied on a sufficiently
accurate and reliable factual basis which could be considered
proportionate to the nature and degree of their allegation, given
that the more serious the allegation, the more solid the factual
basis has to be (see Pedersen and Baadsgaard, cited above,
§ 78).
First,
the Court observes that the impugned assertions consisted of factual
statements, not value judgments, to the effect that Mr Rygh's name
was on the Municipality's list of persons whom it considered to be in
breach of the residence requirements. This was a bare allegation
presented without any criticism and only with a suggestion that Mr
Rygh might be forced to sell his property. A breach of the residence
requirements was not a criminal offence, only a regulatory matter.
Both the City Court and the High Court considered that, locally, the
conduct of which Mr Rygh was accused was likely to be viewed by many
as being reprehensible from a moral and social point of view but that
the accusation had not been of the most defamatory kind.
It
should further be noted that the disputed allegations were presented
with precautionary qualifications (emphasis added here): “According
to the understanding of Tønsbergs Blad”; “The
list includes properties whose use is thought not to be in
conformity with the permanent residence requirements”; “may
be forced to sell”. The headline on the front page
indicates that Mr Rygh will have to explain himself (see paragraph 12
above). In the article inside the newspaper on page 3 there is a
description of the procedure indicating that the Municipality will
report to the County Governor properties suspected of not
complying with the residence requirements and that it will then be
for the County Governor to confront the owners. It should,
moreover, be noted that the article inside the newspaper highlighted
Mr Rygh's own comment that the mention of his name on the list must
be due to a “misunderstanding” (see paragraph 15
above). In addition, at the bottom of the same page, the newspaper
published another article entitled “A two-edged sword”,
reproducing comments by local politicians giving diverging views on
the public need to maintain residence requirements in the
Municipality (see paragraph 16 above). Even though the news item was
presented in a somewhat sensationalist style, the overall impression
given by the newspaper report was that, rather than inviting the
reader to reach any foregone conclusion about any failure on Mr
Rygh's part, it raised question marks with respect to both whether he
had breached the said requirements and whether those requirements
should be maintained, modified or repealed.
In
the light of the above, the Court does not find that the impugned
accusation was capable of causing such injury to personal reputation
as could weigh heavily in the balancing exercise to be carried out
under the necessity test in Article 10 § 2 of the Convention.
Nor
does the Court find that the news coverage was presented without
proper balance. In addition to the above-mentioned qualifications and
counterbalancing elements contained in the 8 June 2000 issue, regard
should be had to the fact that, on 30 June 2000, the day after the
journalist was informed about the exchange of correspondence between
Mr Rygh and the Municipality's Chief Executive Officer, Mr Hansø,
the newspaper published a follow-up article based on an interview by
the journalist with Mr Hansø. The article made it clear that
Mr Rygh's name had been removed from the Municipality's list and
stated the reasons why the residence requirements did not apply to
the property used by him. This must have considerably reduced any
injury to Mr Rygh's reputation caused by the report of 8 June 2000.
In the article of 8 August 2000 the newspaper, referring to its
previous news reports of 8 and 30 June 2000, further emphasised these
clarifications. The Court is unable to share the Supreme Court's view
that the reports of 30 June and 8 August 2000, although
published some time after the 8 June 2000 issue, were of
negligible significance for the newspaper coverage seen as a whole
(see paragraph 51 of the Supreme Court's judgment quoted in paragraph
39 above). In this connection, the Court reiterates that news
reporting based on interviews constitutes one of the most important
means whereby the press is able to play its vital role of “public
watchdog”. The methods of objective and balanced reporting may
vary considerably, depending among other things on the medium in
question; it is not for the 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, cited above, pp. 23-25, §§ 31 and 34;
Bladet Tromsø and Stensaas, cited above, § 63;
and Bergens Tidende and Others, cited above, § 57).
As
to the further question whether the applicants acted in good faith
and complied with the ordinary journalistic obligation to verify a
factual allegation, the Court notes that, according to the High
Court's assessment of the evidence, on which the Supreme Court
relied, the defamatory accusation against Mr Rygh had originated from
an anonymous source. The High Court reasoned that, in view of the
impossibility for the courts to verify the extent to which the
journalist had acted with due care in relying on the anonymous
source, the defamatory allegation ought to be regarded as the
newspaper's own. Similarly, the Supreme Court proceeded from the
premise that in the use of anonymous sources a stricter duty of care
applied and that it would largely be the risk of the newspaper if
factual information originating from such sources were false (see
paragraphs 43 and 47 of the Supreme Court's judgment quoted in
paragraph 39 above). The Court accepts this reasoning and finds no
special grounds for dispensing the newspaper from its ordinary
obligation to verify factual statements that are defamatory of
private individuals.
In
respect of the question whether the journalist had acted in good
faith, the following should, however, be noted. The journalist had
worked on the item over a considerable period, since the autumn of
1999. He was in possession of the tip-off list (entitled “Properties
which should be verified in relation to the residence requirements.
(Not public)”). This was an official document drawn up by the
municipal administration on 11 October 1999 and presented the
following day to the Municipal Standing Committee at a meeting open
to the public. From the autumn of 1999 he made a number of enquiries
to the Municipality on the subject and on 7 June 2000 he interviewed
the director of the Municipality's Planning and Building Department,
Mr Sæter (see paragraphs 9 to 11 above).
It
does not transpire from the interview with Mr Sæter that
Mr Rygh's name was on the list in question and that the
Municipality held the opinion that he had breached the residence
requirements. However, at the High Court's hearing, both the director
of the Municipality's Planning and Building Department and the mayor
testified that they, at the time, had been of the view that Mr Rygh
was in breach of the residence requirements (see paragraph 33 above).
Thus, it was shown that two presumably representative and reliable
officials within the Municipality assuming key roles in the handling
of the residence matter in substance held the same opinion as that
attributed to the Municipality as a whole in the impugned passages
when they were published on 8 June 2000.
It
was an undisputed fact that Mr Rygh did not live permanently on the
property at issue. The only question at the time of the publication
of the 8 June 2000 issue was whether the residence requirements
applied at all to the property used by him. As already mentioned, key
figures in the Municipality believed that they did.
In
the light of the above, the Court finds there was substantial
evidence to corroborate the newspaper's contention on 8 June 2000
that the Municipality at the time held the view that Mr Rygh was in
breach of the relevant residence requirements. This is an
issue that should be determined in the light of the situation as it
presented itself to Tønsberg Blad then, rather than
with the benefit of hindsight (see Bladet Tromsø and
Stensaas, cited above, § 66), offered by the
revelations made subsequently that Mr Rygh's name did not
actually appear on any list to be transmitted to the County Governor
as described in the interview with the director of the Planning and
Building Department. Although the High Court stressed in its judgment
that the latter had been aware when talking to the journalist on 7
June 2000 that he had to carry out further checks, there is nothing
to indicate that this awareness had been imparted to the journalist
or that the latter had knowledge of it from any other source by the
time of publication. Thus, whether or not at the time of publication
the director of the Planning and Building Department and the mayor
held an informed opinion cannot be decisive for the truth of the
newspaper's allegation about the substance of the Municipality's
opinion at that time.
It
was only on 29 June 2000, when the journalist was informed about the
exchanges between Mr Rygh and the Municipality's Chief Executive
Officer, that the Municipality made the journalist aware of its
position as to how the provisions of the Concession Act ought to be
interpreted and applied in relation to properties such as that used
by Mr Rygh. When contacted by the journalist before publication
of the disputed newspaper report, Mr Rygh had not offered any
comments beyond stating that there must have been a misunderstanding
as to the inclusion of his name on the list to be transmitted to the
County Governor (see paragraph 15 above).
In
these circumstances, the journalist cannot in the Court's view be
blamed for not having ascertained for himself, before reporting on
the Municipality's opinion on 8 June 2000, whether the residence
requirements were applicable to the property used by Mr Rygh. On the
contrary, having regard to the relatively minor nature and limited
degree of the defamation at issue and the important public interests
involved, the Court is satisfied that the newspaper took sufficient
steps to verify the truth of the disputed allegation and acted in
good faith.
Nonetheless,
the applicants had to defend their cause in judicial defamation
proceedings pursued at three judicial levels. The outcome was that
the statements were declared null and void and the applicants were
ordered to pay the plaintiff NOK 50,000 in compensation for
non-pecuniary damage and to reimburse him NOK 673,829 for his legal
expenses (see paragraphs 36 and 38 above), in addition to bearing
their own costs. In the circumstances, the proceedings resulted in an
excessive and disproportionate burden being placed on the applicants,
which was capable of having a chilling effect on press freedom in the
respondent State.
In
short, the reasons relied on by the respondent State, although
relevant, are not sufficient to show that the interference complained
of was “necessary in a democratic society”. The Court
considers that there was no reasonable relationship of
proportionality between the restrictions placed by the measures
applied by the Supreme Court on the applicants' right to freedom of
expression and the legitimate aim pursued. Accordingly, there has
been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The applicants did not seek an award for
non-pecuniary damage but requested compensation for the pecuniary
damage which they had suffered as a result of the Supreme Court's
judgment of 1 July 2003 ordering them to pay to Mr Rygh NOK 50,000 in
compensation for non-pecuniary damage and NOK 673,829 for his costs
and expenses (corresponding altogether to approximately 90,000 euros
(EUR)).
The
Government did not offer any comment beyond stating that the finding
of a violation constituted the primary remedy under the Convention.
The
Court is satisfied that there is a causal link between the damage
claimed and the violation of the Convention it has found, and awards
the applicants EUR 90,000 under this head.
B. Costs and expenses
The
applicants also claimed NOK 1,082,033 (corresponding approximately to
EUR 135,000) for the costs and expenses incurred before the domestic
courts and NOK 896,928 (approximately EUR 112,000, not inclusive of
value-added tax – “VAT”) for those incurred before
the Court.
The
Government did not offer any comments on the above beyond stating
that they had no reason to doubt the amounts.
According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 above criteria
and the information in its possession, notably the absence of details
as to the number of hours worked and the rate charged per hour, the
Court is not convinced that all the costs incurred in the Strasbourg
proceedings were necessarily incurred and were reasonable as to
quantum. Making an assessment on an equitable basis, the Court awards
the applicants EUR 35,000 for the proceedings before it
(inclusive of VAT). The claim for costs and expenses in the domestic
proceedings should be awarded in its entirety.
C. Interest incurred during the proceedings before the
national courts and the Court
The
applicants in addition claimed various sums totalling NOK 256,115
(corresponding approximately to EUR 32,000) in simple interest, at
estimated average rates (4%) applied by domestic commercial banks at
the material time, on the sums they had paid in respect of damages
and domestic costs and expenses, covering the period until
31 December 2006.
The
Government did not offer any comments on the above beyond stating
that they had no reason to doubt the amounts.
The
Court finds that some pecuniary loss must have been occasioned by
reason of the periods that elapsed from the time when the various
sums were paid and the costs incurred until the Court's present award
of just satisfaction (see, for example, Bladet Tromsø and
Stensaas, cited above, § 83; Nilsen and
Johnsen v. Norway [GC], no. 23118/93, § 65,
ECHR 1999 VIII; and Bergens Tidende and Others,
cited above, § 70). Making its assessment on an equitable
basis, it awards the applicants EUR 20,000 with respect to their
claim under this head.
D. Default interest
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
3 Holds
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following sums:
(i) EUR
90,000 (ninety thousand euros) in compensation for pecuniary
damage;
(ii) EUR
170,000 (one hundred and seventy thousand euros) in compensation
for costs and expenses;
(iii) EUR
20,000 (twenty thousand euros) for additional interest;
(b)
that these sums are to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 1 March 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President