CASE OF EERIKÄINEN AND OTHERS v. FINLAND
(Application no. 3514/02)
10 February 2009
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 Eerikäinen and Others v. Finland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 20 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“... It was clear from the text of the article that it concerned a pending public trial. X's identity was not revealed in the headline, thus she could not be assumed to be guilty of an offence only by reading the headline. Neither was her identity disclosed in the table of contents; to identify her required reading through the article. The text of the article is not defamatory or slanderous on the grounds set out in the District Court's judgment. Publishing an article about charges brought before a public trial is justified, even though it might cause suffering for the accused. The act did not amount to defamation ...
... the crimes allegedly committed cannot be regarded as minor, taking into account their extent, effects and social importance. An article about this kind of case, and the publication of a photo from which [X] could have been identified, is not a violation of her privacy.”
On the grounds mentioned in the Court of Appeal's judgment, the Supreme Court considers that [the first and the second applicants] have not committed an act of defamation within the meaning of Chapter 27, Article 1 or 2 of the Penal Code as in force at the time of the act. [see paragraph 13 above]
The question thus raised by this case is whether [the first and the second applicants] without a legal right through the use of a mass medium or in another similar manner have publicly spread information, an insinuation or an image depicting the private life of [X] which has been conducive to causing her damage or suffering and are thereby guilty of invasion of privacy within the meaning of Chapter 27, Article 3a, of the Penal Code as in force at the time of the publishing of the article.
According to this provision of law, making public [an article that discusses] a person's actions in public office or function, in business life, in a political or other comparable activity, is not to be considered an invasion of privacy if the reporting is necessary to address a matter of social importance. As noted in the travaux préparatoires (HE no. 84/1997 vp ...) this is relevant chiefly in domains where decision-making takes place or in which the circumstances in reality may affect the every-day life of several persons or which have relevance of principle. According to the travaux préparatoires, such domains are first and foremost the attendance to a public office or function, business life and political activity. According to the said provision, what is essential is whether there is a significant social need to discuss the acts of the person concerned by making public facts which would otherwise belong to the sphere protected by the right to respect for private life.
The criminal case, which has been the object of the article published in the Alibi magazine, has concerned, inter alia, the question whether [X] in order to obtain an unlawful financial benefit, by concealing that she received her livelihood as an entrepreneur, had misled the Social Insurance Institution and the insurance companies to grant her a disability pension thereby causing them economic loss. The acts mentioned in the charge related to [X's] actions as an entrepreneur in a relatively small cleaning firm. 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].
Thus, [the first applicant], who wrote the article in question and intentionally used as an illustration the afore-mentioned earlier published article written by him and the photograph of X in that connection, and [the second applicant], who in his capacity as the magazine's editor-in-chief approved the publication of the article, have through their acts without a legal right by the use of a mass medium publicly spread information, an insinuation or photograph depicting the private life of [X] which was conducive to causing her damage or suffering.
Whether or not the fact that [X] was recognisable was due to a mistake or other technical factor when the magazine was printed has no relevance in the legal assessment of the acts of [the first and the second applicants] since the article in question together with its illustration has been made public without seeing to and making sure that the typography of the article did not disclose [X's] identity.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
“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).
Supreme Court practice
“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.”
“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.”
“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.”
Guidelines for Journalists
III. RELEVANT INTERNATIONAL MATERIALS
“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.”
“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.”
IV. THIRD-PARTY INTERVENTION
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to ... impart information ... without interference by public authority ...
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.”
A. The parties' submissions
1. The applicants
2. The Government
B. The Court's assessment
1. Whether there was an interference
2. Whether it was prescribed by law and pursued a legitimate aim
3. Whether the interference was necessary in a democratic society
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
77. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage. Consequently, there is justification for awarding EUR 9,179 under that head to the third applicant who had paid the total sum.
B. Costs and expenses
- EUR 1,118.11 paid by the second applicant's insurance company and policy holder's excess plus VAT EUR 929.90 paid by the second applicant as regards the District Court proceedings;
- EUR 2,318.02 the third applicant's costs in the District Court and the Court of Appeal;
- EUR 423.41 paid by the second applicant's insurance company and EUR 77.36 paid by the second applicant as regards the Court of Appeal proceedings;
- EUR 134.55 and EUR 2,745 the third applicant's costs in the Court of Appeal and the Supreme Court respectively;
- EUR 2,201.17 paid by the second applicant's insurance company and EUR 543.83 paid by the second applicant.
The applicants claimed EUR 4,000 (inclusive of VAT) for the costs incurred before the Court.
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10 of the Convention;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts:
(i) EUR 9,179 (nine thousand one hundred and seventy-nine euros) to the third applicant, plus any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR 5,000 (five thousand euros) each to the first and the second applicants, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 9,800 (nine thousand eight hundred euros) to the applicants jointly, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;
(b) 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;
Done in English, and notified in writing on 10 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza