AS TO THE ADMISSIBILITY OF
by Jonina BENEDIKTSDÓTTIR
The European Court of Human Rights (Fourth Section), sitting on 16 June 2009 as a Chamber composed of:
David Thór Björgvinsson,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 14 September 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Jónína Benediktsdóttir, is an Icelandic national who was born in 1957 and lives in Reykjavík. She was represented before the Court by Mr Hróbjartur Jonatansson, a lawyer practising in Reykjavík.
The Icelandic Government (“the Government”) were represented by Mrs Ragna Árnadóttir, as Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Factual background to the case
On 1 July 2005 an indictment was issued against Mr J.J. (the founder of a supermarket chain, Bonus, from which a multinational company the Baugur Group had originated), his son Mr J.A.J., Chief Executive Officer of Baugur Group, his daughter Ms K. and Mr T.J., a former Deputy Chief Executive Officer of the Group. It resulted from a criminal investigation instigated following a complaint by a Mr Jón Gerald Sullenberger in the United States of America, a former colleague of J.A.J. - Chief Executive Officer of the Baugur Group.
The Baugur Group was a major shareholder in 365-prentmiđlum (365 Print Media Pvt. Ltd), which was the publisher of, inter alia, Fréttablađiđ, a national newspaper in Iceland.
At the material time there was an ongoing public debate in Iceland relating to allegations that undue influence had been exerted by prominent figures on the most extensive criminal investigations ever carried out in Iceland.
On 24, 25 and 26 September 2005 Fréttablađiđ published, without the applicant’s knowledge or consent, a number of e-mail communications which she had sent to and received from other named persons. The disputed material, consisted of direct quotations or paraphrasing of e-mail exchanges, dating back to the years 2002 and 2003, between Jón Gerald Sullenberger, the applicant and Styrmir Gunnarsson, former editor of another newspaper, Morgunblaðið, and between the applicant and T.J, then Deputy Chief Executive Officer of the Baugur Group. The communications related inter alia to Jón Gerald Sullenberger’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of the Baugur Group; Styrmir Gunnarsson acting as an intermediary between Jón Gerald Sullenberger and Supreme Court Advocate Jón Steinar Gunnlaugsson; the applicant’s recommendation to Jón Gerald Sullenberger that he choose Jón Steinar Gunnlaugsson; arrangements discussed between the applicant and Styrmir Gunnarsson on the handing over of material to the tax authorities; the applicant’s suggestion to him that he interview Jón Gerald Sullenberger. In relation to the recommendation of Jón Steinar Gunnlaugsson, reference was made to Kjartan Gunnarsson, managing Director of the Independence Party.
The disputed publication also included information about the applicant’s own financial situation and claims, her suggestion to Styrmir Gunnarsson that the interview with Jón Gerald Sullenberger should not take place until her own claims had been honoured; her claims against J.J. of the Baugur Group; her intention conveyed to T.J. to publicise the documents she held in her possession unless the Baugur Group honoured her claims; and T.J.’s suggestion to hand the documents over to the authorities if she thought that the Baugur Group had acted unlawfully.
By the time of the disputed publications, the applicant had become a well-known figure in Icelandic society; in September 2005 she had announced her candidacy for the forthcoming local council elections in Reykjavik, due to be held in the spring of 2006.
The applicant submitted that, without her knowledge or consent, the e-mails had been unlawfully obtained by a third party unknown to her. Before the national courts she submitted that she had previously ran a company Aktiverum ehf., which had operated a fitness centre under the name Planetpulse. The company had had a computer domain, where the applicant and other employees had been allocated e-mail addresses. She alone knew the password to her e-mail account at the company. In 2003 the company had been wound up and its assets sold, including the computer, or server, on which the employees’ e-mail accounts had been located. No information was available as to whether the administrator of the company’s estate had taken measures to delete e-mails from the server before it was sold. Whilst the materials in question had been printed from her e-mail account in July or August 2005, the computer which she had used in 2002 had long since become inoperative.
According to the applicant, after the first publication on 24 September 2005, she demanded Fréttablađiđ’s editor to discontinue further publications and to hand the e-mails over to her, but the editor refused. According to the editor, the applicant had only asked whether his intention was to continue publishing, to which he had responded in the affirmative. She had not asked to have further publication stopped or to have the material handed over to her.
2. Temporary injunction imposed by the District Commissioner
On 29 September 2005, the applicant requested the Reykjavík District Commissioner to issue an injunction (sections 24(1) and 26 of the Seizures, Injunctions (Etc.) Act, No. 31/1990) against 365-prentmiðlar ehf, restraining the latter from “publishing [the applicant’s] private materials in the daily newspaper ‘Fréttablaðið’ or in other media owned by the respondent, in part or in their entirety, by means of direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the plaintiff was the sender or the recipient, or other such personal private documents of the plaintiff which the respondent had in its keeping.”
The applicant further requested that the District Commissioner remove from the respondent all the aforementioned private materials which the respondent had in its possession and which had been used, or which were evidently intended for use, in the actions in respect of which the injunction was being requested (section 25 (2)).
In addition, the applicant requested that the injunction be imposed without prior notice and served at the respondent’s business premises (section 26 and item 2 of section 21 (3) of the Enforcement Measures Act).
On 30 September 2005 the District Commissioner, without prior notice and with immediate effect, imposed the requested injunction against further publication and urged the respondent to hand over all the material as requested by the applicant. Fréttablaðið’s news editor, Sigurjón M. Egilsson affirmed that he had the documents in question in his possession and handed them over to the District Commissioner, who took them into his custody. The respondent’s lawyer declared that he accepted the release of the materials and met the applicant’s demands.
The above injunction was imposed temporarily, pending the outcome of the proceedings described below.
According to the Government no information originating from e-mails pertaining to the applicant was published either pending the court proceedings or after. This is undisputed by the applicant.
3. Judicial proceedings lodged by the applicant
In October 2005 the applicant instituted judicial proceedings before the Reykjavík District Court against the publisher, 365-prentmiðlar ehf., and K.J., Fréttablaðið’s editor. She requested the District Court to confirm the District Commissioner’s injunction and seizure of the material kept by the publisher but made no further claims in this respect. She did not request that the materials be handed over to her.
The applicant requested that the editor, K.J., be convicted and sentenced for having obtained access to her private materials, which had been stored in machine-readable (computerised) form, by trickery or another similar unlawful method, and had pried into their contents, in violation of Article 228 of the Penal Code. She also requested that he be convicted and sentenced under Article 229, pursuant to which any person who publicly disclosed the private affairs of another person without sufficient justification shall be liable to pay a fine or be sentenced to a term of up to one year’s imprisonment. In addition, she sought an order against both defendants requiring them to pay her compensation for non-pecuniary damage under, inter alia, section 26 of the Tort Damages Act No. 50/1993.
By a judgment of 14 December 2005 the District Court rejected the applicant’s action on every point.
In her appeal to the Supreme Court the applicant dropped her claims under Article 228 (1) and (3) and instead relied on Article 228 (2); she omitted to pursue her claims of violations of the Personal Data Act no. 77/2000 and the Telecommunications Act no. 81/2003 which had been rejected by the District Court; otherwise she maintained her claims before the latter.
On 1 June 2006, the Supreme Court upheld the District Court’s judgment, giving the following reasoning:
As is stated above, on 30 September 2005 the appellant had an injunction imposed on the publication by the defendant, 365-prentmiðlar ehf., “of the injunction plaintiff’s private materials in the newspaper Fréttablaðið or in other media owned by the injunction respondent, in part or in their entirety, through direct or indirect quotation, irrespective of whether the materials involved were e-mails of which the injunction plaintiff is the sender or the recipient, or other such personal private documents of the plaintiff which the defendant had in its keeping.
Following this, she brought a legal action by a writ of summons issued by the president of the Reykjavík District Court on 6 October 2005, the case being registered on 11 October 2005. In the writ issued by the District Court, the plaintiff made the demand that the injunction be confirmed, and also that the court confirmed the decision by the District Commissioner to seize materials in the keeping of the defendant, 365-prentmiðlar ehf. No demand was made, on the other hand, regarding the rights in respect of which the appellant had sought temporary protection under the injunction, nor that the aforementioned materials be handed over to her. In this respect, the appellant’s demands before the Supreme Court, which are similar, are at variance with the rule of the second paragraph of Article 36 of the Act No. 31/1990, which states that a court judgment confirming both an injunction and the rights which it is designed to protect are to be sought in one and the same action. Nevertheless, this flaw in the plaintiff’s claim is not sufficient, in itself, to result in the dismissal of the case. On the other hand, the plaintiff must content herself with the fact that in this case, the Court’s resolution will extend solely to whether the formal and material conditions for confirming the injunction obtain.
As has been stated above, the plaintiff applied, in her request for an injunction, to have the defendant, 365-prentmiðlar ehf., prevented from publishing matter from unspecified private materials of hers, in their entirety or in part, and irrespective of whether this were done through direct or indirect quotation. Even though the plaintiff sought to define the content of her demand more precisely by stating that this applied to e-mails which she had either sent or received, and other similar personal private documents, no precise statement was made as to whether her demand covered all matters appearing in these materials, irrespective of whether they were generally known or corroborated by other available sources. No distinction was made in her demand between materials originating from the appellant herself or directed to her by those who sent her messages, and materials which had nothing to do with her but nevertheless had come into her possession. No further explanation was given, in the appellant’s injunction request, of what was meant by the words “other such personal private documents,” and no evidence has been revealed to suggest that such documents came into the possession of the defendant, 365-prentmiðlar ehf. No attempt was made to define in further detail what matters these documents were considered to refer to. Under the circumstances, it was not possible to impose an injunction which it would be possible to maintain, in terms of its content, under the rules of section 32 of the Act No. 31/1990 unless, as appropriate, the appellant had specified her demand in further detail at the time when the injunction was imposed and it came to light what materials this defendant had in its possession (see the second paragraph of section 31 of the same Act). The appellant’s request for an injunction was thus both too broad and too indefinite for it to be possible to grant it. In the light of these considerations, the Court has no alternative but to reject the appellant’s demand that it confirm the injunction.
According to the established facts of the case, the District Commissioner has held in his cusotdy the materials that were removed from the keeping of the defendant, 365-prentmiðlar ehf., when the injunction was imposed (see the second paragraph of section 25 of the Act No. 31/1990). Under Section VI of the same Act, it is not possible to seek a separate judgment confirming such a measure taken when an injunction is imposed: a ruling on the lawfulness of such a measure is to be made in connection with the validation of the measure as a whole. The appellant has not submitted any claim in this case for the Court to adjudicate on her right to have these materials handed over to her from the keeping of the District Commissioner. The question therefore cannot be entertained further in this case.
Before the District Court, the appellant demanded that the defendant, K.J., be punished for violations of Article 228 of the General Penal Code. In the writ of summons it was stated that the defendant had violated this provision by obtaining access to the appellant’s private materials, which had been stored in machine-readable form, by trickery or another similar unlawful method, and pried into their contents. This description in the writ of summons accords with the provision of the first paragraph of Article 228, which prescribes punishment for such conduct; that provision lists letters and other materials containing the private affairs of another person. Before the Supreme Court, the appellant has dropped her demand for punishment under the first and third paragraphs of Article 228. She demands that the defendant be punished under the second paragraph of Article 228, which prescribes punishment for rendering useless, or concealing, the private materials listed in the first paragraph of the same Article. In the writ of summons before the District Court, the defendant’s alleged conduct was not described in such a way that this provision could apply to it and the demand for punishment could be based on it (see item d of the first paragraph of section 80 of the Act No. 91/1991). It follows immediately from this reason that the defendant cannot be punished under the second paragraph of Article 228 of the General Penal Code.
The appellant also bases her demand that the defendant, K.J. be punished on Article 229 of the Penal Code, under which any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action, is to be subjected to a fine or up to one year’s imprisonment. In connection with this demand, the Court must resolve the question of whether the coverage in Fréttablaðið concerned the appellant’s private affairs, which were to be found in the aforementioned computer documents, and if so, whether the newspaper disclosed them publicly in the absence of sufficient reason to justify doing so.
It has been mentioned above that the coverage in the newspaper was based, to some extent, on correspondence between other persons, which passed to the appellant, and from her to the defendant, 365-prentmiðlar ehf. This correspondence contained nothing at all about the appellant, and the coverage in the newspaper that was based on it therefore did not constitute any violation against her. For the most part, the coverage in the newspaper was based on correspondence between the appellant herself and other persons which was no longer stored in her computer, but had come into the possession of other parties in printed form. Mention has been made above of the subject of that coverage, which involved the planning of charges against the managers of Baugur Group Ltd; the newspaper’s coverage also focussed on e-mail correspondence between the appellant and another person concerning her financial claims against one of the representatives of the company. Taking this into consideration, the Court must concur with the appellant that Fréttablaðið’s writings about her financial affairs concerned her private affairs in the sense of Article 229 of the General Penal Code, as did those parts of these writings which reported on the appellant’s encouragement of, and her other involvement in, plans to bring charges against named individuals.
Then there arises the argument by the defendants that there was sufficient reason to justify the publication of coverage that drew on the aforementioned e-mail correspondence and contained, amongst other things, the appellant’s private affairs. In adjudicating on this, the Court must take into consideration the fact that when Fréttablaðið’s coverage appeared, matters connected with a charge concerning alleged criminal conduct by the managers of Baugur Group Ltd had for a long time featured prominently in public discussion in Iceland and been the subject of intense controversy resulting, amongst other things, from a police search of the premises of the company in August 2002 and a charge against some of its managers in July 2005. The newspaper’s coverage contained material that was of public interest and concerned a case that had been the subject of great controversy in Icelandic society. Even though the coverage in the newspaper had included disclosures concerning the appellant’s financial affairs, these affairs were, says the defendant, so closely intertwined with the news material as a whole that it was not possible to distinguish between them.
The Court concurs with the defendant that no greater encroachment was made on the appellant’s private life than was unavoidable in a public discussion of a matter that was of concern to the public. Taking all this into consideration, the Court can accept that sufficient reason existed to justify the publication of this coverage by the newspaper. The defendant, K.J., cannot be punished under Article 229 of the General Penal Code.
Finally, the appellant demands that the defendants be ordered, jointly, to pay her compensation for non-pecuniary damage amounting to ISK 5,000,000 under Section 26 of the Tort Damages Act, No. 50/1993 (see section 13 of the Act No. 37/1999). The Court reached the conclusion above that the limits of permitted expression were not overstepped in the coverage in Fréttablaðið. As is described in the summing-up in the District Court judgment, this claim has not been presented in such a way as to give occasion for accepting it on other grounds. The defendants must therefore be acquitted of this demand”.
4. Parallel suit brought by the applicant against DV
On 26 September 2005 another newspaper, DV, went further than other media in its discussion of the dealings between the applicant and the editor of Morgunblaðið, in connection with the reporting on their e-mail correspondence.
The applicant brought separate court proceedings against DV’s editors seeking their conviction and sentence under Article 229 of the Penal Code, for having, in their newspaper report, disclosed her private affairs without sufficient reason.
The editors argued that the news report in question was of interest and concern to the public in view of the public discussion about the connection between the persons referred to in the report and the Baugur case. At the same time, they pointed out that the applicant was a candidate in the primary round of selection of candidates for the Independence Party for the elections to the Reykjavík City Council, and that Styrmir Gunnarsson had been an influential figure in the Independence Party and Icelandic politics in general for many decades. When such persons were connected by particular bonds at the same time as they were working for the advancement of a matter in which they were interested, in order to promote justice, as they saw it, it was important for the normal formation of opinion that the public be allowed to know about the connections that existed between the persons in question.
The Reykjavík District Court rejected these arguments by a judgment of 8 December 2006, and convicted both editors of a violation of the applicant’s rights under Article 229 of the Penal Code and sentenced them each to a fine of ISK 150,000 and to pay her ISK 500,000 in compensation for non-pecuniary damage. On an appeal by the editors, the Supreme Court, by a judgment of 4 October 2007, upheld the District Court judgment.
B. Relevant domestic law
Articles 228 and 229 of the General Penal Code, No. 19/1940 may be found in its Chapter XXV on “Defamation and Offences against the Inviolability of Private Life”. These provisions read:
“Any person who pries into letters, documents, diaries or other comparable materials containing information about another person’s private affairs, having gained access to the materials by trickery, opened letters, entered a locked container or employed another similar method, shall be liable to a fine or up to one year’s imprisonment. The same punishment shall apply to a person who unlawfully obtains access to other persons’ data or programs stored in a computerised form.
The same punishment shall apply to the destruction or concealment of the private materials referred to in the first paragraph of this Article.
Any person who pries into containers belonging to another person without sufficient reason shall be liable to up to three months’ imprisonment.”
“Any person who publicly discloses the private affairs of another person in the absence of sufficient reason to justify the action shall be liable to a fine or up to one year’s imprisonment.”
Section 26 of the Tort Damages Act, No. 50/1993 read:
“A person who
a. intentionally, or through gross negligence, causes bodily harm or
b. is responsible for an unlawful act of malice against the freedom, peace, honour or person of another person may be made to pay compensation for non-financial damage to the person against whom the offence was committed.
A person who, intentionally or through gross negligence, causes the death of another person, may be made to pay the spouse, children or parents of that person compensation for non-financial damage.”
The applicant drew attention to section 47(5) of the Telecommunications Act, no. 81/2003. Chapter IX on the protection of personal data and the sanctity of private life, read:
“Any person who by coincidence, mistake or without special authorisation receives telegrams, pictures or other telecommunicated signs or symbols, or listens to telephone conversations may not write down any such material or use them in any manner. Additionally, he should notify the sender that data were incorrectly received by him. It is obligatory to exercise the utmost confidentiality in such instances”
According to section 74 violations of the Act were punishable by fines or imprisonment.
The applicant also pointed to sections 5 and 7 of the Act on the Protection of Privacy as regards the Processing of Personal Data, no. 77/2000.
The applicant complained that, by affording her insufficient protection against unlawful publication of her private e-mails in the media, the respondent State had failed to secure her rights guaranteed by Article 8 of the Convention and had thus violated this article. In particular, the Icelandic courts had denied her request for an injunction against unlawful publication of the e-mails, which also had not been returned to her, and had rejected her demand that Fréttablaðið’s editor be held criminally liable for the illegal use of her private correspondence.
The applicant submitted that an unknown third party had obtained the e-mails in question, without her knowledge and consent and therefore unlawfully, from a server formerly owned and operated by her former employer who had gone bankrupt in 2003. Moreover, without her prior knowledge or consent, the newspaper had published information from these e-mails.
Article 8 of the Convention reads:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
1. The Government’s arguments
The Government pointed out that it had never been fully revealed how Fréttablaðið came into possession of the e-mails in question; nor had it been established that they were obtained unlawfully. In the course of the court hearings it transpired that the news editor of Fréttablaðið had received print-outs of the e-mails from an unidentified source, and an examination of these materials had indicated that they appeared to have been printed at some time from the applicant’s e-mail box. Nothing was revealed in the case to indicate that staff at Fréttablaðið had taken action to acquire these materials unlawfully.
The Government did not dispute that parts of the materials which found their way to Fréttablaðið concerned the applicant’s private affairs, which are protected under Article 8 of the Convention. Nor did they dispute that the possession of those materials and the publication of information from them affected the applicant’s enjoyment of her private life and correspondence in a manner rendering Article 8 of the Convention applicable to the case.
The core issue in this case related to the applicant’s claim that the newspaper’s editor ought to be punished under Article 229 of the Penal Code for having publicised her private affairs allegedly without justification. The Government, relying on the Supreme Court’s reasoning, argued that in the particular circumstances of the case the national courts had correctly attached more weight to the interest of the freedom of the press in a democratic society to publish information of public concern than to the interest of the applicant in protection of her private life and correspondence. The publication of the disputed material had formed part of a public discussion relating to issues regarding the influence exercised by prominent figures on the most extensive criminal investigation ever seen in Iceland. The Icelandic courts could not be viewed as being required under the Convention to sanction the newspaper and its editor in respect of the publications. In this regard it should also be borne in mind that the applicant was a well-known public figure in Iceland and had declared her candidacy for the forthcoming local elections in Reykjavik.
Moreover, the Government stressed that the Icelandic authorities could not be said to have neglected their duty to secure the applicant’s rights under Article 8 of the Convention by not permanently prohibiting the publication of information from the e-mails and handing them over to her. Of paramount importance in this context was the fact that the applicant had never requested the national courts to order a ban on further publication or the restitution of the e-mails.
Furthermore, the Icelandic authorities had responded swiftly to the applicant’s request for an injunction against the publication by Fréttablaðið of information from her e-mails. Pending the outcome of the court proceedings, the injunction had been in force and all the materials containing the applicant’s e-mails were in the keeping of the District Commissioner. Thus, the remedy used by the applicant (seeking an injunction) had served her purposes completely: publication had been halted and the injunction against publication of information from the e-mails had been in force for eight months, i.e. from 30 September 2005 until 1 June 2006. Since the delivery of the Supreme Court judgment, no information from e-mails connected with the applicant had been published. Thus, the applicant had suffered no further erosion of her interests that could be attributed to the Supreme Court’s decision to reject her demand for the confirmation of the injunction.
A fundamental feature of the injunction of 30 September 2005 was that it had been intended as a temporary measure. The sole reason why the Supreme Court had rejected the applicant’s request for confirmation of the injunction was that the injunction request presented by her legal counsel had not met the clear and unequivocal requirements of the law, being too broad and ill-defined and completely at variance with well-known practice.
The Government emphasised that after delivery of the Supreme Court judgment rejecting her request for a confirmation of the injunction, the applicant did nothing to rectify the procedural flaws highlighted therein. She had the perfect opportunity to present a new injunction request, in the correct and legally-prescribed form, and to apply a second time to the courts to have it confirmed and to have specific material handed over to her. However, she did not do so.
The procedures followed by the newspaper were completely in accordance with what was expected of a responsible news medium in a case of this degree of sensitivity. No encroachment had been made on the applicant’s privacy beyond what was unavoidable in order to throw light on an important matter of national interest, which was the most reported and most hotly-debated issue at the time when Fréttablaðið published the materials in question. Thus, the newspaper complied with the fundamental rules laid down in the Code of Ethics of the National Union of Icelandic Journalists, and in particular Article 3 of the Code, which stated:
“Journalists shall make all possible efforts to observe high standards in gathering, processing and presenting information, and shall show consideration in sensitive cases. They shall avoid everything that could cause innocent persons, or persons who have suffered loss, injury or, shock, needless suffering or disrespect.”
2. The applicant’s arguments
The applicant disputed the Government’s contention that there was no basis for affirming that Fréttablaðið had received the e-mails at issue by unlawful means. The e-mails that had been published by the newspaper contained communications between the applicant and certain named individuals and had been unlawfully taken and provided to the newspaper without her knowledge or consent. Without her consent the e-mails had been published and such publication had continued even after she had insisted that it be stopped. The contents of the e-mails had been taken out of context and a very negative image had been drawn of the applicant in a medium that was owned by persons who were defendants in the Baugur case.
The publication had occurred at a time when the applicant had decided to run in local elections. After the publication she had felt forced to abandon her plan.
In the applicant’s opinion, the Supreme Court had failed to strike a proper balance between her interest in the protection of her privacy and correspondence and the interest of the press.
The applicant protested against the Government’s assertion that it had not been fully proved that the e-mails had been unlawfully taken from her. A significant factor in this respect was that Fréttablaðið had been unable to prove that its possession of the e-mails and publication of their contents had occurred without the applicant’s consent.
The applicant disagreed with the view that there existed such a public interest that could justify the publication of material from her private documents. She disputed that the criminal case in question pertained to any special public interest. This was no different from other criminal cases before the courts and had by no means any greater bearing on the general public than other pending criminal cases.
Furthermore, the Supreme Court seemed to have ignored the fact that the applicant’s case concerned private, confidential correspondence between the persons concerned. The Supreme Court’s findings had wrongly focussed on the material that had been of interest to the general public and the subject of extensive controversy. This controversy, which had consisted of allegations that the criminal case had been fuelled by dubious intentions, was nothing but coverage by news media owned by the defendants.
The Supreme Court’s approach appeared to have been that the ends justified the means. Thus, it was the contents of the material which had been decisive for whether it was permissible to publish the private communications in questions, not the context in which the private matters had been presented or the manner in which the newspaper had acquired the material. In this way the Supreme Court in effect removed the protection of personal confidential correspondence. From the Supreme Court’s judgment it emerged that it was lawful to publish any e-mails obtained by devious means from politicians or public officials provided the e-mails dealt with a subject of wide controversy.
The Supreme Court failed to explain why the private communications of the applicant with other persons “concern the general public”, considering that the applicant was a private person. No attempt was made to explain what interests the general public had in seeing and hearing everything that may have passed between private persons regarding the particular criminal case against the owners of Baugur Group. The applicant was not a party to the Baugur case; she did not file a complaint against the leaders of Baugur; she was not personally under investigation in the case; she was neither in the group of police, prosecution or judges in this case; she was not an employee of Baugur Group or linked in such a manner to the company as could justify her private communications being published against her wishes in the news media. Furthermore, the contents of the private communications had no bearing on the Baugur case as such as there was nothing in them that could affect the outcome of the case. The applicant’s personal opinions and thoughts about the Baugur case and about the leaders of the company, as stated in her e-mails, were therefore outside the criminal case as such. The general public had no right to receive information about her views on the case beyond what she, herself, was prepared to state in her own published writings.
The extensive controversy to which the Supreme Court referred was nothing but public criticism by the defendants and other parties concerned about the conduct of the police and the prosecution, and their allegations about the lack of objective justification for the criminal case against them.
In the circumstances, the applicant considered that her interest in protection of her privacy and confidential communications outweighed those of the defendant newspaper and editor in publishing the material in question. However, the Supreme Court had unjustifiably deprived her of the protection she was entitled to under Article 8 of the Convention.
The Supreme Court’s finding that the applicant’s private financial affairs were so intertwined with the news item as a whole that a distinction could not be made was meaningless. Whilst the publication of comments about the applicant’s financial matters had no bearing whatsoever on the case, the Supreme Court had found that they pertained to a matter of extensive controversy in society. The out-of-context publication of her private letters in which the applicant’s financial claims against her former co-habitant had been discussed had no bearing on the said controversy or on the criminal proceedings in question.
Fréttablaðið’s publication derived from the personal e-mails of the applicant, knowing that they had been unlawfully obtained and without the applicant’s consent, was not in conformity with the ethics of journalism.
The applicant further argued that the manner in which her claims had been presented to the Icelandic courts should have led them to confirm the injunction and the seizure of the e-mails, to sentence the defendants for violating her personal privacy and to award her compensation for non-pecuniary damage.
The reason why her injunction request had referred to her private data other than e-mails was that she did not know at the time exactly which of her private data Fréttablaðið had in its possession or where the respective data had originated from.
The Supreme Court’s view that her petition for injunction was too broad to be applied was without cause and inconsistent with the District Commissioner’s opinion and had not even been argued by the defendants either before the District Court or the Supreme Court.
Also, in light of her request for confirmation of the District Commissioner’s decision to seize the e-mails it was unnecessary for the applicant to specifically claim to have the e-mails returned to her, contrary to what was suggested by the Government.
In addition, the applicant’s claims to find the defendant criminally liable and to pay compensation under section 26 of the Tort Damages Act made it unnecessary for her to make a specific request for a ban on publication of information from the e-mails.
The Supreme Court had wrongly considered that it was unclear what publication the injunction was meant to prohibit. The Supreme Court had in fact misinterpreted and twisted her request in an illogical manner.
3. The Court’s assessment
(i) General principles
According to the Court’s case-law, the collection and storage of personal information relating to a person’s e-mail are covered by the notions of correspondence and private life in Article 8 § 1 (see Copland v. the United Kingdom, no. 62617/00, §§ 41 and 44, ECHR 2007 ...). Moreover, even where it occurs in the context of professional activities or in the work place, the interference with such communications may affect a person’s enjoyment of his or her right to respect for private life within the meaning of this provision (Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997 III, pp. 1016, § 43; Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251 B, pp. 33-34, § 29; Huvig v. France, judgment of 24 April 1990, Series A no. 176 B, p. 41, § 8, p.52, § 25; Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152 A, pp. 12-13, § 26, and pp. 21-22, § 51).
The Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see, among many other authorities, Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004 VI).
The question is whether the State in the context of its positive obligations under Article 8, has achieved a fair balance between the applicant’s “right to respect for” her “private life” and her “correspondence” under Article 8 and the newspaper’s right to freedom of expression guaranteed by Article 10 of the Convention. In examining this question, the Court will have regard to the principles established in its case-law concerning the freedom of the press to impart information on a matter of public concern, including on ongoing criminal proceedings, and the right of the public to receive such information (see, amongst other authorities, Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004 XI).
(ii) Application of these principles
From the outset it is to be noted that the applicability of Article 8 to the case under consideration was undisputed and the Court sees no reason for holding otherwise. The only issue is whether the respondent State had fulfilled its positive obligation under this provision to protect the applicant’s private life and correspondence. Bearing in mind the particular nature of the conflicting interests and the importance of the interests at stake, the Court considers that the competent authorities in the respondent State should be accorded a certain margin of appreciation in assessing the need to protect the applicant’s private life and correspondence under Article 8 as opposed to that of safeguarding the newspaper’s freedom of expression under Article 10.
By way of preliminary observation the Court observes that under Article 228 of the Penal Code it was a criminal offence to obtain by unlawful means access to material containing information about another person’s private affairs, including to his or her data stored in computerised form, or to destroy or conceal such private material. Moreover, under Article 229, it was a criminal offence to disclose to the public information about private matters without sufficient reasons. Also, a civil remedy of compensation for non-pecuniary damage caused by a breach of privacy with intent or gross negligence was available on the conditions set out in section 26 of the Tort Damages Act 1993. In addition, in order to prevent irreparable harm pending the outcome of court proceedings, an interim injunction to restrain publication and to seize material of the kind at issue, could be sought under the provisions of sections 24 to 26 of the Seizures, Injunctions (etc) Act 1990. Under section 36 the confirmation of a seizure order or an injunction could be sought in connection with court proceedings. The applicant also drew attention to specific rules on personal data protection contained in the Personal Data Act 2000 and the Telecommunications Act 2003. The Court is satisfied that the applicant’s interest in protection of her correspondence and private life was attended to by important safeguards under Icelandic law.
The question arises whether the manner in which the competent national authorities applied the relevant national law in the concrete circumstances of the case entailed a failure on their part to respect the applicant’s private life and correspondence under Article 8 of the Convention.
It should first be noted that it was not revealed in the proceedings how the newspaper had acquired the disputed e-mails. The newspaper’s editor affirmed that he had received print outs or copies of print outs of the e-mails, but refused to disclose how the material had come into his possession. According to the applicant’s explanation to the national courts, the material had probably originated from a computer (or server) she had used in 2002 as an employee of a company which had been liquidated and sold in 2003. The applicant had requested a police investigation which however had not been completed by the time the national courts dealt with her action against the newspaper and no further information on the matter has been submitted to the Court. Before the Supreme Court the applicant dropped her accusations based on the first and third sub-paragraphs of Article 228 of the Penal Code (acquiring access to private materials, stored in a machine readable form, by trickery or other similar unlawful method) but requested that the defendant editor be punished under its second paragraph (destruction or concealment of private documents). This request was dismissed by the Supreme Court on the ground that the applicant had failed to specify the conduct impugned in her writ of summons.
In relation to the above the Court also observes that, apart from alleging “malice” on the part of the defendant editor, the applicant did not present any separate arguments in support for her claim for compensation under section 26 of the Tort Liability Act.
Therefore, in the Court’s view, in so far as the applicant complained that the respondent State had failed to protect her right to respect for private life and correspondence on account of the allegedly unlawful acquisition by the newspaper’s editor of the disputed material, the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.
Without, therefore, pronouncing any view on the substance of the applicant’s claim that the newspaper had unlawfully acquired the material in question, the Court will turn to the issue whether the Icelandic authorities had failed in their Article 8 obligations to respect the applicant’s private life and correspondence with regard to the disputed publication by the Fréttablaðið newspaper of extracts of the e-mails in question. Under the Court’s case-law, the position of the former is not necessarily decisive for the latter; in several previous cases concerning issues of press freedom under Article 10 of the Convention, the Court has accepted that the interest in protecting the publication of information originating from a source who had obtained and retransmitted the information unlawfully may in certain circumstances outweigh those of an individual or an entity, private or public, in maintaining their confidentiality (see Radio Twist, A.S. v. Slovakia, no. 62202/00, §§ 58 to 65, ECHR 2006 ...; Fressoz and Roire v. France [GC], no. 29183/95, §§ 53-56, ECHR 1999 I; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999 III; and, mutatis mutandis, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports of Judgments and Decisions 1996 II, §§ 42 and 45).
In this regard the Court observes that the published material had consisted of direct quotations or paraphrasing of e-mail exchanges between Jón Gerald Sullenberger, a former colleague of J.A.J. - Chief Executive Officer of the Baugur Group, the applicant and Styrmir Gunnarsson, former editor of another newspaper, Morgunblaðið, and between the applicant and T.J, then Deputy Chief Executive Officer of the Baugur group. The communications related inter alia to Jón Gerald Sullenberger’s wishes to find a suitable lawyer to assist him in handing over to the police allegedly incriminating material he had in his possession and to represent him in a future court case against the leaders of the Baugur Group; Styrmir Gunnarsson acting as an intermediary between Jón Gerald Sullenberger and Supreme Court Advocate Jón Steinar Gunnlaugsson; the applicant’s recommendation to Jón Gerald Sullenberger that he chose Jón Steinar Gunnlaugsson; arrangements discussed between the applicant and Styrmir Gunnarsson on the handing over of material to the tax authorities; the applicant’s suggestion to him that he interview Jón Gerald Sullenberger. In relation to the recommendation of Jón Steinar Gunnlaugsson, reference was made to Kjartan Gunnarsson, managing Director of the Independence Party.
The disputed publication also included information about the applicant’s own financial situation and claims; her suggestion to Styrmir Gunnarsson that the interview with Jón Gerald Sullenberger should not take place until certain claims she had against an unnamed person had been honoured; her claims against J.J. of the Baugur Group; her intention conveyed to T.J. to publicise the documents she held in her possession unless the Baugur Group honoured her claims; and T.J.’s suggestion that the documents be handed over to the authorities if she thought that the Baugur Group had acted unlawfully.
It appears that the publication had occurred in the context of a public debate in Iceland regarding accusations that undue influence had been brought to bear by politicians on police investigations of alleged criminal offences by representatives of the Baugur Group. This had been one of the most extensive crime investigations that had ever taken place in Iceland, leading to an indictment being issued against six persons on 1 July 2005. At the time of the disputed publication, the applicant had declared her candidacy for the Independence Party in the 2006 local elections in Reykjavik.
Those parts of the e-mail exchanges which the newspaper published were directly related to the criminal charges that were brought against the leaders of the Baugur Group, a matter which had already for some time been at the centre of public discussion and of serious public concern in Iceland. The Court sees no grounds for calling into doubt the Supreme Court’s findings that the disclosure of information regarding the applicant’s financial affairs was so intertwined with the news item as a whole that it was not possible to distinguish between them. Nor does it see any reason to question the Supreme Court’s assessment that the newspaper had not interfered with her private life beyond what was unavoidable for its coverage of a matter of general interest.
In the Court’s view, therefore, it could reasonably be regarded as justified under the Convention to give more weight to the freedom of the press to impart information of public concern than the applicant’s interest in protecting her private life and correspondence. The Supreme Court’s rejection of her claim that the newspaper and its editor should be held liable to pay her compensation for non-pecuniary damage under the Tort Damages Act does not therefore of its own give rise to an issue of failure to respect her private life and correspondence under Article 8. Her complaint that the editor was not held criminally liable is in any event incompatible ratione materiae with the provisions of the Convention.
In this connection the Court has taken judicial notice of the favourable outcome for the applicant in a parallel case brought by her against another publisher, DV, where the Supreme Court, like the District Court, held the defendants editors liable under Article 229 of the Penal Code on account of the private character of the information in question and the absence of a public interest in the publication and awarded the applicant ISK 500,000 in compensation for non-pecuniary damage under section 26 of the Tort Damages Act. This goes to illustrate that legal protection of privacy and correspondence was a reality under Icelandic law.
In so far as the applicant was aggrieved by the Supreme Court’s rejection of her request for a permanent injunction confirming the measure granted provisionally by the District Commissioner on 30 September 2005, it transpires from the Supreme Court’s reasoning that she had not presented her request in a manner meeting the relevant statutory requirements. She did not thereafter avail herself of the possibility to reintroduce a new request conforming to the guidance provided by the Supreme Court but instead opted to challenge the Supreme Court’s rejection in her application to the Court. Leaving aside that the applicant may not be considered to have exhausted domestic remedies as required by Article 35 § 1 of the Convention, for the reasons set out below, the Court does not find it necessary to go into her various arguments disputing the Supreme Court’s findings.
On 30 September 2005, the day after the applicant had submitted her requests for provisional measures, the District Commissioner granted the applicant’s requests and imposed with immediate effect an injunction restraining Fréttablaðið and any other media owned by 365-prentmiđlum from any further publication of contents of the e-mails and had the editor hand over to it all copies of her e-mails that were in his possession. This injunction applied throughout the ensuing court proceedings, until 1 June 2006, when the Supreme Court delivered its judgment. According to the Government, and this was undisputed by the applicant, no information from e-mails connected with her had been published thereafter.
In these circumstances, the Supreme Court’s rejection of the applicant’s request for a permanent injunction could hardly give rise to an issue of failure to respect for her private life and correspondence.
Having regard to the above, in the Court’s view, there is nothing to indicate that the Icelandic authorities transgressed their margin of appreciation and failed to strike a fair balance between the newspaper’s freedom of expression under Article 10 and the applicant’s right to respect for her private life and correspondence under Article 8.
It follows that, in so far as the matters complained of fall within the Court’s substantive competence, the application is manifestly ill-founded.
Having regard to the above, the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas Bratza