(Application no. 28070/06)
9 April 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 A. v. Norway,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 19 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background to the defamation proceedings brought by the applicant
“Possibly the most special candidate of these persons (former convicted, Court's addition) is precisely this 42-year-old because of his past and because he has been seen in the area where the murder occurred, at the time when it occurred, but so far there are no suspects, and it is precisely that which now is a little exciting in this case. Habitually, this type of investigation takes a long time, but when one carries out this type of alibi checkups, the case may soon take a new and special turn.”
B. Publication giving rise to the defamation proceedings brought by the applicant against Fædrelandsvennen
“Convicted Murderer: I am completely innocent
AT WORK: At 7.10 this morning, a 42-year-old convicted murderer from Kristiansand toddled off to the bus to return to work. Last night, he had been driven home by the police, after having been interrogated for approximately 10 hours concerning his movements on Friday, the day when C and D were killed.
ALIBI: - I am completely innocent, said the 42-year-old to Fædrelandsvennen in the early hours of today. The man says he has an alibi for Friday night. The 42-year-old, who was seen by several witnesses in Baneheia on Friday, is probably the most interesting of several criminally convicted persons whose movements are now being checked by the police.
SENTENCE TO SECURITY MEASURES: In 1988, the 42-year-old was sentenced to 11 years imprisonment and five years security measures [sikring] for one murder by knife, one attempted murder and several other acts of violence, with knife. The term of security measures [sikringstid] imposed on him expired on 20 September last year, but as late as in March this year, he was sentenced to another three years of security measures. The judgment has been appealed against.”
Inside the newspaper at page 4 appeared an article entitled
“Murder convict returns to work today”
With the subtitle:
“I am completely innocent”
“Sent home after 10 hours' interrogation”
The introduction stated:
“At 2 pm yesterday a 42 year old murder convict was fetched by the police at his workplace. 11 hours later he was brought to his home”
C. Defamation proceedings brought by the applicant against Fædrelandsvennen
The applicant appealed against the High Court's application of the law to the Supreme Court, alleging that it entailed a violation of Articles 6 § 2 and 8 of the Convention. He maintained that in its coverage on 24 and 25 May 2000 the Fædrelandsvennen had portrayed him as the perpetrator of the most aggravated offences seen in modern times in Norway. He had not consented to the media coverage which had been a great burden to him. He had lost his job and home and suffered from serious psychological problems.
“(56) Taking as a starting point the wording, typography, the internal context and the use of photographs it must be ascertained how the report and articles were likely to be understood by the ordinary reader.... The statements must be considered in the context of the whole report they are part of.
(57) The High Court unanimously found that the factual information had to be considered in the context of the other content of the reports and the articles published on 24 and 25 May 2000, and concluded:
'In the High Court's opinion the conclusion of the interpretation is that Fædrelandsvennen pointed to [the applicant] as a possible perpetrator of the murders of the two girls in Baneheia. His name is not stated, but it was possible for those who previously knew [the applicant] to recognize him in particular because of the photograph taken of him from behind and because of the information about where he lives and the work place in the report dated 25 May. It is difficult to evaluate how strong the suspicion created was. Even though it is correctly underlined that the police had given [the applicant] only a witness status without formally charging or suspecting him, in the High Court's view the report as a whole was capable of giving the ordinary viewer the impression that the newspaper considered [the applicant] to be a man who already at this early stage in the investigation stood out as the most likely perpetrator among the persons who were in the police's search light.'
(58) The High Court, amongst other aspects, emphasised that in the front page story of 24 May it was stated that [the applicant] was 'probably the most interesting of several convicted persons whose movements are now being checked by the police', that he had been questioned for 10 hours after having been collected by the police at his work place, and that the report was illustrated with Dagbladet's photograph of [the applicant] with his head blanked, being escorted by two police officers. The High Court found that the photograph created associations of arrest. This was presented together with the information that, after having been brought home, another police car with a dog patrol had arrived at the house, had passed by in low speed, had turned and had vanished in the dark. In addition to this the newspaper rendered statements by a police inspector to Verdens Gang that the police had received much information with substance, and that the answer to who had killed the two little girls was to be found in the police records. Also the rendering on 25 May that the police were looking for a locally known murderer with a greatly deviant personal character, in the High Court's opinion supports the view that the applicant may be a person with the special character that are a requisite for committing such a heinous crime. The High Court did not find that the rendering of [the applicant]'s denial and of the neighbours' warning against prejudging were sufficient to weaken the suspicion created by the newspaper coverage as a whole.
(59) I concur with the High Court in that the focus by Fædrelandsvennen on [the applicant] as a previously convicted knife killer, his presence in Baneheia that afternoon the misdeed was carried out, and the investigation of him, for an ordinary reader must have been perceived as if he could be suspected of having committed these killings. It was already publicly known that the perpetrator(s) had used knives when the girls were killed. This information, together with the description of parts of his criminal conviction from 1988 and the security measures [sikring], was likely to harm [the applicant]'s good name and reputation and to expose him to hatred and contempt. The objective description of the offence in Article 247 is therefore fulfilled.
(60) The adversary party has stated that the reports in Fædrelandsvennen of 24 and 25 May did not contribute to identify [the applicant] beyond that occurred in TV2 in the evening of 24 May, where he was interviewed and filmed from behind and from the side while walking towards Baneheia. My comment to this is that Fædrelandsvennen in connection with the reports of 25 May 2000 about [the applicant] informed about 'the 42 year old's' work place and place of residence. The photograph from the previous day depicting [the applicant] entering a bus, a new photograph of 25 May showing [the applicant] with the same jacket and with a plastic bag on his way home 'to the house in ....[the applicant]'s road at Z', and the article from the newly constructed housing area in Æ at Z, may have led to more people in the near environment becaming aware of [the applicant]'s identity.”
“(76) It is self-evident that the rapes and killings in Baneheia on Friday, 19 May 2000 were of great public interest. The news media had a duty to report, and the public had a right to receive, information about the misdeed, the investigation and the progress in the case. It is clearly a matter of public interest that previously convicted felons are in the police's searchlight, and that interrogations and other police work is taking place to check witnesses out of the case or to charge them. In the near environment it may be of public interest to be informed about the fact that a previously convicted killer in the area in respect of whom a case concerning prolongation of security measures was pending, has been brought in by the police for questioning.
(77) This must however be weighed against the interest of privacy and the protection of reputation, when the media circles in and identifies one or a few previously convicted persons being under investigation. At this stage the public normally has no legitimate interest to receive detailed information about previously convicted persons and their identity, hereunder descriptions of the criminal offences for which they have been convicted. However, in this very special case people living in the vicinity had a particular interest in knowing that a person who had previously been found guilty of murder and of violent assault and who had been sentenced to security detention, was living in the area, so that they could protect their own and their children's interests.
(78) The character of the allegation and, in particular, its seriousness is an important factor in the balancing exercise to be carried out when determining whether the interests of protection of personal life justify an interference with the freedom of expression, see Norwegian case-law reports (Norsk Retstidende (Rt.)) 2002 p. 764 on pp 774-775. In accordance with the case-law of the European Court and the Norwegian Supreme Court a distinction ought to be made between statements of fact and value judgments, because only statements of fact may be susceptible to proof. Normally statements which may be understood to mean that a person is or may be suspected of a criminal offence must be considered to be statements of facts which need to be proven.
(79) The respondents have argued that the impugned statement only concerns whether the unnamed 42 year-old 'is probably the most interesting among several previously convicted felons whose movements are now being checked by the police'. The leader of the investigation has later confirmed that the applicant was the most interesting person on whom efforts were deployed at the beginning of the investigation. The statement is alleged to have been correct, and its publication is claimed not to be unlawful.
(80) When one, as I do, has reached the conclusion that the newspaper's reports and articles considered as a whole left the impression that [the applicant] could be a suspect in the case, the evidence must concern whether he has committed the crime he has been accused of. It is not sufficient that the newspaper gave an accurate description of the factual circumstances adduced to show that there was a basis for suspicion. As an exception to this general rule case law has accepted the publication of charges. Here the evidence is acceptable when it is proven that the reporting of the charge in itself is correct, see Rt. 1999 p. 1742 (Landåssaken). There is no corresponding exception for reporting on suspicion.
(81) In this case Fædrelandsvennen has not rendered a suspicion stated by others. The newspaper coverage and the articles mainly consist of reporting on the judgment from 1988, the relevant preventive supervision case [sikringssak] and the statements made by leaders of the investigation. It appears clearly that the applicant has been interrogated as a witness and that neither he nor anyone else is under investigation as a suspect. The most direct statement indicating suspicion is attenuated in its form in that [the applicant] according to the newspaper is 'probably the most interesting of several criminally convicted persons whose movements are now being checked by the police'. His statements in an interview published on 24 May 2000 about his being completely innocent, has been published in the head line on top of the front page.
(82) In balancing the competing interests in the concrete case I have with some doubt found that it was not unlawful for Fædrelandsvennen on 24 and 25 May 2000 to publish that [the applicant] was the most interesting of several convicted persons investigated by the police, even though this in the context may be perceived to mean that he was or could be a suspect. The monstrous sexual offences and consequent killings in Baneheia were of particularly great public interest throughout the country, especially in Kristiansand and in the Agder counties. The people in the vicinity around Baneheia and in the vicinity where [the applicant] lived, had a particular interest in receiving continuous and concrete information about the investigation.
(83) In my opinion the journalist and the editor have not been negligent. The intense and extensive interest shown by the national news media directed against [the applicant] before Fædrelandsvennen's own publishing, his own statements to the media and the public interest justified the publication of the information about [his] workplace and place of residence and the use of anonymous photos of his person. When considering the question of negligence, I also emphasize that the coverage and articles were balanced, that their main content consisted of reporting true factual information, and that the police underlined that no one was under suspicion and that the [applicant]'s view was presented clearly. I add that since this case presented itself at the early stage of the investigation, the newspaper had no cause to investigate further if [the applicant] could be the perpetrator....”
“(93) There was obviously public interest attached to the investigation in the Baneheia case. The nation was shocked, and it was a task for the media to inform of the crimes and the work of the police. In the High Court it was agreed that it must be allowed to impart an information that a previously convicted felon was in the police's search light and had been subjected to a long interrogation - even though the reporting would make it possible to understand who this was for those who had special knowledge or for those who carried out investigations on their own. I too agree with that. The disagreement in the High Court concerned whether the further identification provided by Fædrelandsvennen - in particular by revealing the workplace and residence was justified.
(94) In assessing the character of the allegation it is a point that this constituted an affirmation of suspicion, which when considering the seriousness is different from an accusation of being the perpetrator. But, on the other hand, the suspicion was related to particularly heinous crimes. The crimes aroused strong feelings of abhorrence and hatred in the population, and it is difficult not to think that it must have been awful to have been exposed to suspicion for having committed them. I agree with the High Court minority when it states that 'strong reasons for protecting the privacy militate for protecting the identity of an individual who for different reasons has come in the search light of the police in the investigation of criminal cases. This consideration is, not the least, important in serious criminal cases where great public interests are attached to clearing up the case'. And precisely a person like [the applicant], who with his background more easily than others would be suspected, had a special need for the protection offered by the presumption of innocence.
(95) I cannot see that it betters things, as stated by Fædrelandsvennen, that [the applicant] was given the opportunity to declare his innocence on the front page of the newspaper's issue of 24 May 2000: 'Convicted murderer: I am completely innocent'. It emerges from this report that none of 'a not insignificant number of people' being checked in the case were under suspicion. However, neither this was likely to weaken the suspicion towards [the applicant] as the likely perpetrator. I agree with the High Court - all three justices - when it states:
'Not in the least the High Court finds that the total search light directed against [the applicant] is important. He represents both the starting point and most of the reporting done by Fædrelandsvennen covering the Baneheia-case those days. Given the reluctance the press in accordance with the ethics of journalism usually show by not identifying individuals being in the police's search light, this to a large extent must strengthen the ordinary reader's impression of [the applicant] as being the most possible perpetrator.'
(96) I cannot see that the total reporting by Fædrelandsvennen should be considered balanced, even though the factual information taken apart had not been incorrect, [the applicant] had been given the opportunity to claiming his innocence and the police's statement that no one was to be suspected had been referred to. When it comes to heinous crimes of such gravity as here, in my opinion the press should not be allowed to publish untrue suspicions against identifiable individuals, even though the coverage should otherwise be characterized as being balanced.
(97) I add that [the applicant] was persecuted by assertive media people against whom he found it difficult to protect himself. That he at no point accepted to be identified, must be obvious.
(98) The difference of opinion between the majority and the minority of the High Court was related to the significance of other media identifying [the applicant]. In the evening of 24 May 2000 TV2 showed a report where he was filmed from behind and somewhat from the side. On 25 May 2000 Dagbladet informed that he worked in a protected workplace in Kristiansand and lived in his brother's cabin in Y at Z. The newspaper also showed a photo of him taken from behind. Fædrelandsvennen went the furthest in publishing identifying information about [the applicant] - in particular by revealing his workplace and residence, but besides this the articles in this most important district newspaper must have made it possible for more people to identify him than those who watch TV2 or read Dagbladet.
(99) The High Court minority point to an important consideration in emphasising at the end stating the need for the individual to be protected from collective media pressure:
'The minority also attaches considerable weight to the fact that the coverage in Faedrelandsvennen appeared as an extensive and independent contribution from the newspaper and that the damaging effect for [the applicant] and the problems caused for him must have been caused by the total pressure from the media coverage during a short and concentrated period of time where Fædrelandsvennen's contribution was of particular significance. The minority is inclined to accept that [the applicant] had become 'free game' as a result of the fact that some media had identified him. Such a solution is not adequate for protecting each individual against libellous reporting in mass media and does not coincide with the independent responsibility each newspaper has in circumstances where judicial and ethical press norms may be under challenge due to a situation of competitiveness .'
(100) I concur with this, and conclude - in accordance with the vocabulary used by European Court - that a pressing need existed for interfering with the freedom of expression in the way of a reaction to the coverage by Fædrelandsvennen.
(101) The conditions for compensation in accordance with section 3-6 of the Damage Compensation Act have been fulfilled. Since I am aware that I represent a minority, I see no reason to go into detail with regard to the amount of compensation. However, in view of Fædrelandsvennen's pleadings I point to the fact the harm caused by the offence to a large extent must be objectified: Also people who are socially marginalised must enjoy effective protection against libellous allegations. Like the minority in the High Court, I vote for compensating [the applicant] with NOK 150,000 from the newspaper and NOK 25,000 from the editor. The contribution from the journalist was more peripheral, and she should not be ordered to pay compensation. ...”
D. Defamation proceedings brought by the applicant against TV2
II. RELEVANT DOMESTIC LAW AND PRACTICE
“Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”
A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“rettsstridig”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement.
III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE
“Principle 8 - 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.”
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
A. The parties' submissions
(1) The applicant
(2) The Government
B. The Court's assessment
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“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 parties' submissions
(a) The applicant
(b) The Government
2. Assessment by the Court
(a) General principles
(b) Application of these principles
III. 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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) EUR 19,000 (nineteen thousand euros) in respect of non-pecuniary damage;
(ii) EUR 12,500 (twelve thousand five hundred euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that these sums are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis