AS TO THE ADMISSIBILITY OF
by Janne Petteri LAPPALAINEN
The European Court of Human Rights (Fourth Section), sitting on 20 January 2009 as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 22 May 2006,
Having deliberated, decides as follows:
The applicant, Mr Janne Petteri Lappalainen, is a Finnish national who was born in 1973 and lives in Outokumpu. He is represented before the Court by Mr P. Sallinen, a lawyer practising in Joensuu.
A. The circumstances of the case
The facts of the case, as submitted by the applicant and as they appear from the documents on the file, may be summarised as follows.
In 1998 an article entitled “When an Outokumpu gang terrorises ... Juha-Pekka was forced to dig his own grave in the icy ground” was published in issue no. 6/1998 of the magazine Alibi. It was about a criminal case in which the applicant had been convicted [on 6 April 1998] of having assaulted, forced and deprived X of his liberty, and of subsequently abandoning him, and sentenced to an immediate term of one year and one month’s imprisonment. Another person involved, aged 17 years at the time, had been convicted of the major part of those offences and sentenced to a suspended term of eight months’ imprisonment. The article mentioned the applicant’s full name but not the names of the other persons, save for the 17-year-old who was referred to by his first name and the first letter of his surname. The article stated that there had been several incidents in the locality, that there was an out-of-control youth gang, and the applicant was mentioned as the prime perpetrator. The applicant alleges that the article erroneously stated that he was the leader or a member of that gang.
On 16 November 1999 the applicant instituted proceedings against Mr K., the journalist who had written the article, and Yhtyneet Kuvalehdet Oy, the publishing company, claiming non-pecuniary damages for suffering and distress.
On 27 January 2000 the Helsinki District Court (käräjäoikeus, tingsrätten) held an oral hearing. On 4 February 2000 it rejected the action, holding that the publishing of the name of a convicted person did not amount to an offence and that therefore no right to compensation existed under Chapter 5, section 6, of the Tort Liability Act (vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974).
The applicant appealed. On 22 March 2001 he changed counsel.
On 12 December 2002 the Helsinki Court of Appeal (hovioikeus, hovrätten) held an oral hearing. On 31 March 2003 the court partly upheld the applicant’s claim and ordered the journalist and the publishing company jointly to pay the applicant EUR 2,000 for suffering and distress. The court found that there had been no justification for publishing the name of a private person such as the applicant.
All the parties requested leave to appeal, which was granted on 3 September 2003.
In its judgment of 19 December 2005 (precedent no. KKO 2005:136) the Supreme Court (korkein oikeus, högsta domstolen) overturned the appellate court’s judgment and rejected the action. It noted that an offence is not the offender’s private business. In principle, however, a person convicted and sentenced for having committed an offence also enjoys the right inherent in private life to live in peace. According to the Personal Data Act (henkilötietolaki, personuppgiftslagen; Act no. 523/1999), any information about the commission of an offence and the resulting sentence qualifies as “sensitive” personal data. The publicity per se of criminal proceedings and of related documents does not mean that information made public during the proceedings may be freely published as such by the media.
The Supreme Court noted that factors related to the offence, the perpetrator or the circumstances may speak in favour of the general public’s right to know the identity of the offender. It was, however, not possible to give an unequivocal answer in advance, applicable to all cases, as to those situations in which this was justified. It was nonetheless clear that a distinction had to be made between, on the one hand, situations where making information public contributed to a public debate about matters of general importance to society and, on the other hand, situations where the disclosure of information interfering with the right to private life had the sole purpose of satisfying the curiosity of a particular readership. As to the case under consideration the court reasoned:
“In the article in question, which was written in the form of an interview with the complainant and his friends, it was noted that the District Court had convicted [the applicant] of certain offences described therein. The article is entitled: “Juha-Pekka was forced to dig his own grave in the icy ground!” The narration is colourful but the individual facts concerning [the applicant] have not even been alleged to be groundless. As to [the applicant’s] person, no reference has been made to background facts unrelated to the offence that as such could have damaged his honour or interfered with his private life. The approach taken by the article has not been primarily societal or taken a stand on criminal policy although it has noted the wish of the interviewees for young people to have a peaceful place to meet in the locality and for the police to take firmer action.
At the beginning of the article it is noted that the complainant was a victim of an out -of-control youth gang in the locality. Thereafter it states how the complainant became the victim of offences committed by [the applicant] and four other young men. In addition, the article describes the offences and circumstances and the consequences for the complainant. On the fourth page of the article there is a section entitled “The same gang has been terrorising people already for a long time”. The section notes that in the locality a gang made up of about 20 men has also before carried out comparable actions. However, it is not stated that [the applicant] took part in these actions or that he was the leader or even a member of that gang. In the next section after the heading concerning the punishments [the applicant] is indeed mentioned as the prime perpetrator but this part clearly concerns the principal subject of the article, that is, the offences committed against the complainant of which the applicant was guilty. The Supreme Court does not consider that the article, not even because of the subheading about the same gang, includes such information or a clear insinuation which could fulfil the constituent elements of an offence within the meaning of Chapter 5, section 6, of the Tort Liability Act. That being the case, the question which remains is whether the mentioning of [the applicant’s] name in the article constitutes an offence which may give rise to liability in damages.
The Supreme Court considers that the mentioning of [the applicant’s] name in the article constituted an interference with his private life. It is true that the article in question could have been published without mentioning [the applicant’s] name. [The applicant] is not an influential person in society within the meaning of the last sentence of Chapter 27, Article 3a, of the Penal Code (rikoslaki, strafflagen). As such, there is no reason to doubt that the mentioning of [the applicant’s] name in this connection has been conducive to causing him suffering.
On the other hand, the mentioning of the perpetrator’s name could be justified by the fact that [the applicant] had committed an unusually grave, violent crime harming the human dignity of the victim, for which he had been sentenced to over a year’s imprisonment. The article had been published shortly after the District Court had given its judgment when the case had been topical news.
Despite the colourful narration, the general tone of the article is pertinent. In its connection no photographs of the perpetrator have been published which makes the case different from, for example, the Supreme Court’s precedent no. KKO 2001:96. [The applicant] has not argued the existence of circumstances relating to him or to persons close to him that would have meant that the mentioning of his name would have resulted in particular suffering or which would have particularly required the non-disclosure of his name and his identity in this connection. Nor has the protection of the private life of [the applicant’s] victim in this case required the skipping over of [the applicant’s] name. In addition, it has appeared likely that many local inhabitants already knew who the person at issue was prior to the publication of the article. The simple fact that the circulation of Alibi magazine was nationwide could not as such have resulted in essential additional harm for [the applicant]. He has not even argued that he was a nationally known person or became such a person owing to the article in Alibi magazine.
In sum, the Supreme Court notes that [the applicant] had been convicted of an unusually grave crime. Therefore, he could have foreseen that his name could be made public in one way or another. The criminal case was topical at the time of publishing the article. The general tone of the article had been pertinent and, apart from his name, no photograph or other information relating to his private life was published in its connection. Having weighed the afore-mentioned aspects the Supreme Court considers that the mentioning of [the applicant’s] name has not taken place without a lawful right within the meaning of Chapter 27, Article 3a, of the Penal Code and the publishing of this information could not therefore, in the circumstances described above, amount to an offence within the meaning of Chapter 5, section 6, of the Tort Liability Act. This was without prejudice to how the mentioning of [the applicant’s] name was to be assessed in the light of the professional ethical rules concerning good journalistic practices.”
B. Relevant domestic law and practice
Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act (Suomen Hallitusmuoto, Regeringsform för Finland, Act no. 94/1919), provided:
“Everyone has the right to freedom of expression. The right to freedom of expression entails the right to impart, publish and receive information, opinions and other communications without prior hindrance from anyone. More precise provisions on the exercise of the right to freedom of expression shall be prescribed by an Act of Parliament. Restrictions on pictorial programmes necessary for the protection of children may be prescribed by an Act of Parliament.
Documents and recordings in the possession of the authorities are public, unless their publication has, for compelling reasons, been specifically restricted by an Act. Everyone has the right of access to public documents and recordings.”
The same provision appears in Article 12 of the current Constitution of 2000 (Act no. 731/1999).
Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone’s right to private life is guaranteed.
Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 1/1919), as in force at the relevant time, provided that the provisions of the Tort Liability Act applied to the payment of compensation for damage caused by the contents of printed material.
Chapter 5, section 6, of the Tort Liability Act stipulates that damages may also be awarded for distress arising from an offence against liberty, honour or domestic harmony or from another comparable offence. Under Chapter 5, section 1, of the said Act, damages shall constitute compensation for personal injury and damage to property. Section 2 provides that a person who has suffered personal injury shall be entitled to damages to cover medical costs and other costs arising from the injury, as well as loss of income and maintenance and pain and suffering.
Chapter 27, Article 3a, of the Penal Code, as in force at the relevant time, provided that a person who unlawfully, through the use of the mass media or in another similar manner, publicly spread information, an insinuation or an image depicting the private life of another person which was liable to cause him or her damage or suffering, should be convicted of invasion of privacy and sentenced to a maximum term of two years’ imprisonment or to a fine. A publication that discussed a person’s behaviour in public office or function, in professional life, in a political or other comparable activity, was not to be considered an invasion of privacy if the reporting was necessary to address a matter of social importance.
In 2000, Chapter 27, Article 3a, of the Penal Code was replaced by Chapter 24, Article 8 (Act no. 531/2000). Under the new provision on the injury of personal reputation (yksityiselämää loukkaavan tiedon levittäminen, spridande av information som kränker privatlivet), a person who unlawfully, through the use of the mass media or in another manner, publicly spreads information, an insinuation or an image of the private life of another person in such a way that the act is conducive to causing that person damage or suffering or subjecting that person to contempt, shall be convicted of injuring personal reputation. However, an act shall not constitute an injury to personal reputation if it concerns the evaluation of that person’s activities in a professional or public capacity and if it is necessary for the purpose of addressing a matter of importance to society. According to the Parliamentary Law Committee’s 2000 Report (lakivaliokunta, lagutskottet; LaVM 6/2000), the purpose of that provision is to permit the dissemination of information on the private life of such persons if the information may be relevant in assessing the performance of their functions.
Section 2 of the Public Nature of Court Proceedings Act (laki oikeudenkäynnin julkisuudesta, lag om offentlighet vid rättegång; Act no. 945/1984), as in force at the relevant time, provided that the name, profession and domicile of the parties and the nature of the subject matter and the time and place of a hearing were public information from the beginning of the trial at the latest. Section 3 provided that the public had the right to be present during hearings unless otherwise provided in the relevant legislation. Section 9 stated that the provisions laid down in the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta, lag om offentlighet i myndigheternas verksamhet: Act no. 621/1999) were applicable to trial documents. Information and documents relating to a trial are, as a rule, public once charges have been brought unless provided otherwise by an Act.
Supreme Court practice
In a Supreme Court decision (KKO 1980 II 123) the following was noted (summary from the Yearbook):
“The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff’s consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”
In June 1997 the Supreme Court delivered two decisions relating to articles which had given information on cases of arson. The first decision (KKO 1997:80) concerned a newspaper article (summary from the Supreme Court’s Yearbook):
“A newspaper published an article concerning cases of arson, in which it was said that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.”
The second decision (KKO 1997:81) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article (see the previous paragraph) and on the records of the pre-trial investigation and the court proceedings, but did not indicate that the newspaper article had been used as a source (summary from the Yearbook):
“Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to liability for damages and the amount of compensation in view of the fact that the information had been reported in another publication at an earlier stage.”
The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, it had not been necessary to refer to his position as head of the fire department or to his marriage to the suspect in order to give an account of the offence. The fact that the information had previously been published in print did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview with the head of the fire department had been published in the newspaper did not justify the conclusion that he had also consented to its publication in the periodical. Repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The readers of the newspaper and the periodical were partly different, and the circulation of the newspaper apparently did not entirely coincide with that of the periodical. Therefore, and considering the differences in the content and tone of the articles, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering. The events reported in the article did not concern the plaintiff’s conduct in the performance of his duties as head of the fire department and it had not been necessary to mention the complainant’s name and profession for the purpose of discussing a matter involving significant public interest or reporting on the offences. By associating the complainant’s name and profession with the offences in question, the article had unlawfully spread information and insinuations concerning his private life likely to cause him damage and suffering. The disclosure of the complainant’s name and the emphasis on his occupation had amounted to an insult. By again reporting on the matter two months after the events had occurred, the periodical was found to have caused the complainant additional suffering for which separate compensation was to be paid.
The Supreme Court’s decision of 26 September 2001 (KKO 2001:96) concerned a magazine article about pending criminal proceedings in which X was charged with having misled the Social Insurance Institution and the insurance companies to grant her a disability pension. The acts mentioned in the charge related to her actions as an entrepreneur in a relatively small cleaning firm. The Supreme Court found that although the criminal case concerned substantial financial benefits, it was not a case which, viewed on its own, was of such general public interest that there would have been grounds to reproduce, as part of an article and without X’s consent, another article that included her name and photograph. Although the underlying purpose of the article might have been to draw attention to the abuse of social benefits in general by using an individual case and thus to a negative social phenomenon, it was not necessary or justified to publish without authorisation an illustration revealing the identity of an individual private person charged with or convicted of such an offence and in a similar position to X. The Supreme Court found that by attaching the said illustration (in Finnish: kuvitus; that is by reproducing the old article which included X’s name and photographs), the journalist and the editor-in-chief had violated X’s right to privacy.
The Supreme Court’s decision of 25 June 2002 (KKO 2002:55) concerned the broadcasting of the name of a woman who, together with a person in a public position, had been a party to an assault. The court found that the facts discussed in the television programme with regard to the woman were part of her private life and enjoyed the protection of privacy. The fines imposed on her as punishment for the assault did not constitute a criminal-law sanction justifying publication of her name.
Another decision of 4 July 2005 (KKO 2005:82) concerned an article about a relationship between A, who worked as a press officer for a candidate in the presidential elections, and B, the ex-spouse of a TV journalist. A’s photo was included in the article. The Supreme Court, having assessed the provision on the invasion of privacy in the Penal Code in the light of this Court’s case-law, found that A did not hold a position that meant that such details of her private life were of public importance. The article had thus invaded A’s privacy.
Guidelines for Journalists
The Union of Journalists in Finland (Suomen Journalistiliitto, Finlands Journalistförbund ry) publishes Guidelines for Journalists (Journalistin ohjeet, Journalistreglerna) for the purposes of self-regulation. The 1992 Guidelines were in force at the material time and provided, inter alia, that the publication of a name and other identifying information in the context of reporting on offences was justified only if a significant public interest was involved. The suspect’s identity was not usually to be published before a court hearing unless there were important reasons relating to the nature of the offence and the suspect’s position which justified publication (Article 26).
New Guidelines came into force in 2005, which noted that when publishing public material regard must be had to the protection of private life. The public nature of information does not necessarily mean that it may be published. Special care must be observed when discussing matters concerning a minor (Article 30). The name, photograph or other identifying facts of a convicted criminal may be published unless it is considered unjust in terms of his/her position or offence. As regards a minor or an unaccountable person information should be disclosed with restrain (Article 31). A journalist must be careful not to present information that may lead to the identification of a person in cases where he/she is only a suspect or has merely been charged (Article 32).
C. Relevant international materials
On 10 July 2003 the Committee of Ministers of the Council of Europe adopted Recommendation No. Rec(2003)13 on the provision of information through the media in relation to criminal proceedings. In point 8 of the principles appended to the recommendation, it considers as follows:
“Protection of privacy in the context of on-going criminal proceedings
The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.”
The commentary to the recommendation considers as follows (paragraphs 26 and 27):
“Everyone has the right to the protection of private and family life under Article 8 of the European Convention on Human Rights. Principle 8 recalls this protection for suspects, the accused, convicted persons and other parties to criminal proceedings, who must not be denied this right due to their involvement in such proceedings. The mere indication of the name of the accused or convicted may constitute a sanction which is more severe than the penal sanction delivered by the criminal court. It furthermore may prejudice the reintegration into society of the person concerned. The same applies to the image of the accused or convicted. Therefore, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.
An even stronger protection is recommended to parties who are minors, to victims of criminal offences, to witnesses and to the families of suspects, the accused and convicted persons. In this respect, member states may also refer to Recommendation No. R (85) 11 on the position of the victim in the framework of criminal law and procedure and Recommendation No. R (97) 13 concerning the intimidation of witnesses and the rights of the defence.”
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
“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.”
The Court first finds that the publication of the impugned statements relating to the applicant falls within the scope of his private life, within the meaning of Article 8 § 1 of the Convention.
Noting that the applicant did not complain of an action by the State, but rather the lack of adequate State protection, the Court reiterates that, although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in the effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations between individuals. The boundary between the State’s positive and negative obligations under this provision does not lend itself to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI, with further references).
The question raised by this application is whether the Finnish courts failed to give sufficient weight to the applicant’s rights under Article 8. The applicant’s status as an ordinary person enlarges the zone of interaction which may fall within the scope of private life. The fact that he was the subject of criminal proceedings cannot remove from him the protection of Article 8 (see Sciacca v. Italy, no. 50774/99, § 28-29, ECHR 2005 I). In the present case the protection of private life had to be balanced against the freedom of expression guaranteed by Article 10 of the Convention.
Freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. This freedom under Article 10 is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. Moreover, a constant thread running through the Court’s case-law is the insistence on the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Pedersen and Badsgaard v. Denmark [GC], no. 49017/99, § 71, 17 December 2004).
However, protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith, on an accurate factual basis, and provide “reliable and precise” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “duties and responsibilities” are significant when, as in the present case, there is a question of undermining the “rights of others”. Also of relevance for the balancing of competing interests which the Court must carry out is the fact that, under Article 6 § 2 of the Convention, individuals have a right to be presumed innocent of any criminal offence until proved guilty (see Worm v. Austria, 29 August 1997, § 50, Reports 1997-V and Du Roy and Malaurie v. France, no. 34000/96, § 34, ECHR 2000-X).
Turning to the facts of the present case, the Court first notes that the information published in the impugned article was based on facts. The article stated that the applicant had been convicted by the District Court of various criminal offences. No question therefore arises as to whether the statements disregarded his right to be presumed innocent until proved guilty according to law. The Supreme Court did not consider that the article, despite its subheading about “the same gang”, included such information or clear insinuation which could fulfil the constituent elements of an offence mentioned in Chapter 5, section 6, of the Tort Liability Act. The Court sees no reason to differ. That being the case, the question which remained was whether the mentioning of the applicant’s name in the article had been such an offence as might give rise to liability in damages. The Supreme Court also answered that question in the negative. It noted that the applicant had been convicted of offences of violence which had also degraded the victim’s human dignity. Furthermore, the impugned article did not include his photograph. The Supreme Court concluded that the applicant’s privacy had not been invaded.
The Court must assess whether the Supreme Court struck a fair balance between the two conflicting values guaranteed by the Convention, namely the protection of the applicant’s right to respect for his private life and the newspaper’s and the journalist’s freedom of expression. In that respect, it needs to be ascertained whether the court applied standards which were in conformity with the principles embodied in Articles 8 and 10 of the Convention.
To begin with, the Court observes that the Supreme Court clearly recognised the conflict between the two opposing interests and applied the domestic legal provisions by weighing the relevant considerations in the case. The court referred in its analysis to the case-law of the Court and the principles formulated in connection with the exercise of the right to freedom of expression and the protection of the rights of others. It carried out a careful balancing exercise between the competing interests at stake, that is, the applicant’s interests against the public interest in the relevant matter, namely the occurrence of an unusually violent and serious crime. Undoubtedly, such a crime and the identity of the offender were matters of serious public interest and concern.
Having regard to the Supreme Court’s reasoning, the Court finds that the Supreme Court made a thorough examination of the case and balanced the opposing interests involved, in conformity with Convention standards, and relied on grounds which were both relevant and sufficient. The Supreme Court was justified in finding that the public interest in publishing the information in question, which originated in public criminal proceedings, outweighed the applicant’s right to the protection of his private life. Consequently, the Court cannot find that there has been a failure on the part of the Finnish State to afford adequate protection of the applicant’s rights under Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings;
Declares the remainder of the application inadmissible.
Lawrence Early Nicolas Bratza