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FOURTH SECTION

CASE OF RUOKANEN AND OTHERS v. FINLAND

(Application no. 45130/06)

JUDGMENT

STRASBOURG

6 April 2010

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 Ruokanen and Others v. Finland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 16 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 45130/06) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Finnish nationals, Mr Heikki Tapani Ruokanen and Mr Petri Ensio Pöntinen, and a Finnish limited liability publishing company Yhtyneet Kuvalehdet Oy (“the applicants”), on 8 November 2006.

The applicants were represented by Mr Risto Ryti, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.

The applicants alleged, in particular, that their right to freedom of expression had been violated when they were sentenced for aggravated defamation.

On 29 September 2008 the President of the Fourth Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first and second applicants were born in 1951 and 1967 and live in Helsinki and Tampere respectively. The applicant company is based in Helsinki. The first applicant is the editor-in-chief of the applicant company and the second applicant is a journalist.

On 6 September 2000 a student was allegedly raped at a party which was held to celebrate a local baseball team's victory in the Finnish championship. On 11 May 2001 the applicant company published an article in the magazine Suomen Kuvalehti about this incident entitled “A student raped at the baseball party”. The content of the article was the following:

“A girl studying in K. [name of the city] was raped at the party to celebrate the victory of K.P. [name of the team] last September. Several players of the team participated in the rape.

The folk high school of K. confirms that their student was a victim of rape at the party to celebrate the victory of K.P. held on 6 September 2000.

The girl had been invited by the gold-medal team to attend “an after party” in a hotel in K. According to the information received by Suomen Kuvalehti, the rapist was one of the players of the team but there were also other players in the hotel room, some of them holding the victim, some of them watching. The rape was interrupted when one of the players of the team entered the room and ordered the others to stop the rape.

The student girl is an adult. She has given a written statement about the incident but does not wish, at least for the time being, to report the incident to the police.

The folk high school has reported the incident to the city officials, to the leaders of the baseball team and to its main sponsor.

K.P. won the second consecutive gold medal in the Finnish championship league last autumn. The team defeated S.J. straight 3-0.”

The article did not include any photographs. Moreover, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine.

The players had not been contacted for their comments before the article in question was published but the magazine published in its next issue a reply given by them in which they denied being guilty of any crime.

The content of the article was based on a statement given by the victim to the folk high school of K. on the following morning and which had been corroborated by two witnesses. Several other persons had also made statements supporting the victim's account of the facts.

The police started to investigate the alleged rape after the article had been published. According to a press release issued by the police on 19 April 2002, the victim of the alleged rape was not able to identify the offender or the offenders nor was she able to clarify the events in such detail that the offence could be attributed to a certain person or persons. Consequently, the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen) interrupted the pre-trial investigation.

On 30 October 2002 the public prosecutor brought charges for aggravated defamation against the first applicant, the editor-in-chief of the applicant company, and the second applicant, the journalist. The baseball team pursued a compensation claim against all the applicants, which was joined to the criminal charges.

On 26 March 2003 the Espoo District Court (käräjäoikeus, tingsrätten), after an oral hearing, sentenced the first and second applicants to pay sixty day-fines, amounting to 3,540 and 1,920 euros (EUR) respectively, for aggravated defamation. Moreover, all the defendants in the domestic proceedings were jointly and severally ordered to pay the baseball team EUR 89,000 plus interest for non-pecuniary damage as well as for costs and expenses. The court found that the statement made by the rape victim had not been reliable since she had not brought the issue to the police's attention. The local public had not been aware of the incident until the article in question was published in the mass media. All members of the baseball team had suffered non-pecuniary damage due to the false accusations published in the article. The court concluded that the accusations were so serious that their accuracy should have been verified very carefully, which the applicants had failed to do. As to the compensation awarded, the court noted that the defamation was directed at all players of the team and that they could receive compassionate support from each other. The court took this into account when reducing the amount of compensation awarded for their suffering.

On 9 May 2003 the applicants appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), claiming that they had had strong reasons to believe that the accusations were true. If the same evidence had been presented in criminal proceedings, it would have led to the conviction of the offender. The police had been aware of the incident but had not done anything even though rape was an offence that always required ex officio public prosecution. The applicants claimed under Article 10 of the Convention that their right to freedom of expression had been violated.

The Helsinki Appeal Court held an oral hearing from 6 to 8 June 2005. On 11 October 2005 it upheld the Espoo District Court's judgment. The Appeal Court stated the following:

“Freedom of expression and protection of private life and honour are fundamental rights. According to Article 10 § 1 of the Constitution, everyone's honour is guaranteed. Freedom of expression and protection of honour are also human rights protected by the European Convention on Human Rights. Therefore, when interpreting the extent of these fundamental rights, the case-law of the European Court of Human Rights must also be taken into account.

...

According to Article 10 paragraph 2 of the European Convention on Human Rights, the exercise of freedom of expression may be subject to such restrictions and penalties as are prescribed by law and are necessary in a democratic society, for the protection of the reputation of others. The European Court of Human Rights has, inter alia, in its judgment Karhuvaara and Iltalehti v. Finland of 16 November 2004 taken a position with respect to the freedom of expression of journalists, stating that the press must not overstep certain bounds in respect of the rights and the reputation of the others, although journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Similarly in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004.

According to Article 6 paragraph 2 of the European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The European Court of Human Rights has found in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004 that the ordinary journalistic obligation to verify a factual allegation required that the journalists should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis had to be. In the case “Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria of 14 November 2002 the above-mentioned court stated that, as the case had only reached an early stage of the criminal proceedings, particular care had to be taken to protect a person against “trial by the media” and to give effect to the presumption of innocence.

It must be decided on the one hand whether the honour of [the players] has been violated and on the other hand, whether there were sufficient reasons to restrict [the applicants'] freedom of expression.

The article in question mentions that some of the players of the K.P. were guilty of rape. As it was mentioned in the article that the rape took place at the party to celebrate the victory of K.P., one can reasonably think that it was especially the players of the winning team that were involved. [The second applicant] has confirmed during the Appeal Court proceedings that by players he had meant the players of the winning team.

The article was written in such a manner that any one of the players could have been guilty of a serious crime. The maximum sanction for the alleged crime is ten years' imprisonment. Before the publication of the article, not even the pre-trial investigation had started. Labelling someone guilty before a matter has been resolved by a court of law would mean rendering a premature public judgment, the consequences of which could be difficult to repair. Also and from the general point of view, taking into account ultimately the ability of the courts to function, the public must not have false expectations or misunderstandings (for example KKO 2000:54). The allegation has violated [the players'] right to the presumption of innocence. Moreover, the allegation of having committed a serious crime is an act that is conducive to causing damage and suffering or contempt. On the above-mentioned grounds the Appeal Court finds, like the District Court, that [the players'] honour has been violated.

[The applicants] have alleged in the Appeal Court that the police of K. had known about the rape but had not taken any measures. Concealing a serious crime is an issue of social relevance about which the press must be able to write. However, the article does not mention that the police tried to conceal the matter or that the folk high school or anybody else had even informed the police. On the contrary, the article mentioned that the alleged victim did not want to report the incident to the police. Even though according to the article the folk high school had reported the incident to the city officials, to the management of the baseball team and to its main sponsor, this part of the article does not, bearing in mind the possibility of the said instances to act in the matter, show any intention to conceal the matter.

On the above-mentioned grounds, the Appeal Court finds that the essential function of the press in the core area of freedom of expression and as a guardian against misuse of power in a democratic society is not at stake in the present case, even though the pre-trial investigation into the alleged rape was started only after the publication of the article.

[The first and second applicants] have not demonstrated that they had sufficient reasons to believe that the allegations made in the article were true. They have stated that they did not even try to contact [the victim], the players or their team. [The first and second applicants] have declined to reveal their sources. By not revealing their sources, they have taken the risk of possibly being convicted for defamation. As stated above, there is no indication that the alleged rape was commonly known in K. before the publication of the article. By relying solely on the statement made by the [victim], in which the perpetrators were not identified in any other way than that the rape had taken place at the winners' party, [the first and second applicants] could not have reasonably considered the statement as being true. The statement was made by private persons and in order that the folk high school could later demonstrate that it had given sufficient instructions in the matter. The statement had not been written on [the victim's] initiative. One could not reach such a conclusion on the basis of the statement that only some of the players were guilty of rape. [The first and second applicants] have failed to verify sufficiently that the information about the players being guilty of rape was true, although they had had the possibility to clarify the issue. The nature and the seriousness of the crime required that the article was particularly accurate.

There are no reasons to estimate that [the players'] right to honour would be lesser than [the first and second applicants'] right to freedom of expression. Restricting [the first and second applicants'] right to freedom of expression was necessary in order to protect [the players'] honour and their presumption of innocence. ....”

On 12 December 2005 the applicants applied for leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen), reiterating the grounds for appeal relied on before the Appeal Court.

On 15 May 2006 the Supreme Court refused leave to appeal.

II. RELEVANT DOMESTIC LAW

Chapter 24 (531/2000), Article 9, of the Penal Code (rikoslaki, strafflagen) reads as follows:

“A person who (1) spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or (2) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph (1), shall be sentenced for defamation to a fine or to imprisonment for a maximum period of six months.

Criticism that is directed at a person's activities in politics, business, public office, public position, science, art or in a comparable public position and that does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs (1) and (2).”

Article 10 of the same Code provides that if, in the defamation referred to in Article 9, the offence is committed by using the mass media or otherwise by making the information or insinuation available to a large number of people, the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for a maximum period of two years.

Section 39 of the Freedom of the Press Act (painovapauslaki, tryckfrihetslagen; Act no. 909/1974), 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 (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974, as amended by Act no. 509/2004) stipulates that damages may also be awarded for distress arising, inter alia, from an offence against liberty, honour, domestic peace 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.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

The applicants complained under Article 10 of the Convention that their right to freedom of expression had been violated when they had been sentenced for aggravated defamation.

Article 10 of the Convention reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government contested that argument.

A. Admissibility

The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

(a) The applicants

The applicants claimed that the question of whether or not there had been a rape ultimately had no significance when assessing the necessity to restrict freedom of expression, as the applicants had had good grounds for publishing the case at the time of the publication: the applicants had relied on a number of sources including a written statement submitted by the rape victim and verified by two witnesses, the article had dealt with a serious criminal offence, and although the rape suspicions had also been known to the local police, no investigation had been started. The article had not infringed the presumption of innocence of any of the players as no player had been mentioned by name. It had also become apparent from the article that the victim had not wanted the police to investigate the matter. The magazine had published a reply given by the players in its next issue in which all the players had denied being guilty of a crime.

The applicants pointed out that the fact that the victim had later withdrawn her identification of one named offender did not have any significance as far as the applicants' responsibility was concerned as they knew nothing about the said withdrawal, which took place a year after the publication of the article. It was undisputed that during the police investigation the victim had still maintained that the rape had taken place and that the investigation had only been suspended, and not terminated for good, since the victim had not been able and/or willing to contribute to solving the matter.

The applicants maintained that it was undisputed that the police and other people had been aware of the suspected rape prior to the publication of the article. It was also undisputed that although the act had been subject to public prosecution, the police had not started or even tried to launch a pre-trial investigation into the matter prior to the publication of the article. It did not make any difference whether the events had been actively concealed or whether that had been the result of the indifference of the persons who knew about the events, since the result had been that the information had in fact been concealed.

(b) The Government

The Government agreed that the conviction of the first and second applicants and the obligation of all applicants to pay damages and costs had amounted to an interference with their right to freedom of expression.

As to the requirement that that interference be “prescribed by law”, the Government pointed out that the applicants had not questioned this. In any event, the measures in question had had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 24, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had had a legitimate aim, namely the protection of the reputation or rights of others.

30. As to the necessity requirement, the Government maintained that the first and second applicants had been convicted by the domestic courts for having presented false information concerning the players of the Finnish baseball winning team as they had reported on the Internet site of a nationwide magazine and in an article published in that magazine that players of the team had raped a female student. The text on the front page of the magazine as well as the headline and the text of the article had clearly indicated that the rape had been a fact that had actually taken place. The article had not mentioned any players of the team by name and the suspicion had thus covered them all. The players came from a small town where they and their families were well known and could thus be identified from the article. The rape suspicion had thus been conducive to complicating the everyday life of the players and their families. However, as the defamation had been directed at all players of the team and they could receive compassionate support from each other, the District Court took this into account by reducing the amount of compensation awarded for their suffering.

31. The Government observed that the only source confirming the alleged rape had been the statement made by the victim. No attempts had been made by the applicants to contact the victim or the players or their club. The present case was not about revealing journalistic sources but about the obligation to verify a factual allegation. The alleged rape had not at any stage been proved to have taken place. The alleged victim had withdrawn her allegation of being able to identify those involved in the rape. The pre-trial investigations had started after the article was published but as the victim had not been able to clarify either the events or the offenders, the pre-trial investigation had to be interrupted. It had not been shown that information about the alleged rape had been concealed. In the article itself the passivity of the police had not been mentioned nor had the police's or anyone else's conduct been questioned. The article itself had not contributed to any discussion of social significance in the present case. The factual basis of the article on which the applicants had relied had not been sufficiently accurate and reliable to be considered proportionate to the nature and degree of their allegations. The fact that a reply had been published later on did not give the players an effective opportunity to defend themselves as the damage to their reputation had already occurred.

The Government concluded that the measures in question, the conviction and the order to pay damages and costs, had been “proportionate to the legitimate aim pursued” and the reasons adduced by the courts to justify them had been “relevant and sufficient”.

2. The Court's assessment

1. Whether there was an interference

The Court agrees with the parties that the applicants' conviction, the fines imposed on them and the award of damages and costs concerning all applicants constituted an interference with their right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention.

2. Whether it was prescribed by law and pursued a legitimate aim

The Court notes that, according to the Government, the measures in question had a basis in Finnish law, namely in the Constitution and, in particular, in Chapter 24, Articles 9 and 10, of the Penal Code. Moreover, the interference complained of had a legitimate aim, namely the protection of the reputation or rights of others. The applicants did not question this. Therefore the Court concludes that the interference was “prescribed by law” (see Nikula v. Finland, no. 31611/96, § 34, ECHR 2002 II; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 X, Eerikäinen and Others v. Finland, cited above, § 58) and that it pursued the legitimate aim of protecting the reputation or rights of others, within the meaning of Article 10 § 2.

3. Whether the interference was necessary in a democratic society

According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it 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. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be strictly construed. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).

The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).

The Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks made by the applicants and the context in which they made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30; Lingens, cited above, § 40; Barfod v. Denmark, 22 February 1989, § 28, Series A no. 149; Janowski, cited above, § 30; and News Verlags GmbH & Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298).

The Court further emphasises the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, § 31; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997 I; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not only do the media have the task of imparting such information and ideas: the public also has a right to receive them (see, Sunday Times v. the United Kingdom (no. 1), cited above, § 65).

The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see Bladet Tromsø and Stensaas v. Norway, cited above, § 65). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, and Bladet Tromsø and Stensaas v. Norway, cited above, § 58).

One factor of particular importance is the distinction between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. A requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. However, even where a statement amounts to a value judgment, the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment may be excessive where there is no factual basis to support it (see Turhan v. Turkey, no. 48176/99, § 24, 19 May 2005, and Jerusalem v. Austria, no. 26958/95, § 43, ECHR 2001-II).

The Court notes that special grounds are required before a newspaper can be dispensed from its ordinary obligation to verify factual statements that are defamatory of private individuals. The question of whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the newspaper can reasonably regard its sources as reliable with respect to the allegations. The latter issue must be determined in the light of the situation as it presented itself to the journalist at the material time, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas v. Norway, cited above, § 66).

Turning to the facts of the present case, the Court notes that the first and second applicants were convicted on the basis of the remarks made in an article in their capacity as editor-in-chief and journalist, respectively. The Court notes that the issue which is essentially at stake in the present case is whether the domestic authorities struck the required balance between the applicants' right to freedom of expression and the right to reputation of the alleged perpetrators of a crime.

The Court observes at the outset that the article of 11 May 2001 was entitled “A student raped at the baseball party”. In addition, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine. The article stated that a student had been raped by one of the baseball players of the local winning team, that several other players had participated in the incident but that it had finally been interrupted by one of the players. The events were described in the article in a very short and concise manner. It was also mentioned that the girl was above 18 years of age and that, for the time being, she did not wish to report the incident to the police. No other reference to the involvement or inaction of the police was made in the article. Moreover, it was mentioned that certain city officials, the management of the baseball team and its main sponsor knew about the incident.

The Court observes first that, in general, the article was written in an objective manner and its style was not sensational or gossip-like. The article did not mention the names of any of the persons involved in the incident nor were any photographs included. However, the players could be identified by the fact that they belonged to the local sports club, which was mentioned by name, and that they were members of the winning team of 2000. They could thus be identified in their home town, by baseball fans and by a larger public (see Selistö v. Finland, cited above, § 64) and therefore suffer damage to their reputation (compare and contrast Bladet Tromsø and Stensaas v. Norway [GC], cited above, § 67).

The applicants claimed that they wrote about an issue of public interest, namely about a serious crime that had allegedly been committed by private persons and in respect of which no investigation had been started. However, the Court notes that the applicants did not mention this issue anywhere in the article, failing thus to demonstrate that the issue was of public interest. Moreover, the allegations were of a serious nature and were presented as statements of fact rather than value judgments. As regards the nature and degree of the defamation, the accusations of rape were found defamatory by the domestic courts because the accused were said to have committed a crime (see Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 66, Series A no. 239). Moreover, nothing in the article indicated that the city officials had tried to conceal the crime imputed to the members of the baseball team.

As to the reliability of the sources, the Court notes that the applicants based their article on the victim's statement given to the folk high school of K. which was corroborated by several witnesses interviewed by the applicants but who wished to remain anonymous. The Appeal Court found that the applicants had not been able to show that they had had sufficient reasons to believe that the accusations were true and that by not revealing their sources, they had taken the risk of being convicted of defamation. In this connection the Court recalls that protection of journalistic sources is one of the basic conditions for press freedom without which sources may be deterred from assisting the press in informing the public on matters of public interest (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009). However, the Court observes that in the instant case the applicants were at no stage required to disclose the identity of their sources. Moreover, they failed to take any steps to verify whether the accusation had a basis in fact, although they had the possibility to clarify the issue by contacting the victim, the players and their team.

As stated by the Appeal Court, the alleged rape was presented in the article as a fact although the criminal investigation only started after the publication of the article. Article 6 § 2 requires that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The Court therefore considers that the article violated the presumption of innocence of the players and defamed them by stating something as a fact which had not yet been established.

Moreover, the Court has taken into account the severity of the sanctions imposed on the applicants. It observes that the first and second applicants were ordered to pay sixty day-fines, amounting to EUR 3,540 and EUR 1,920 respectively. In addition, all three defendants in the domestic proceedings, together with the publishing company, were ordered to pay damages and costs and expenses jointly and severally in a total amount of EUR 89,000 plus interest, of which EUR 81,600 plus interest was attributable to the three applicants in the present case before the Court. However, it should be borne in mind that the amount of compensation to be paid by the applicants to the members of the baseball team was only EUR 4,000 or EUR 5,000 per member although there were twelve members in the team. For the Court, this approach must be seen as illustrative of the domestic courts' search for a proportionate response to the interference with the applicants' Article 10 rights.

50. Finally, the Court notes that in the instant case the first and second applicants were subjected to a criminal law sanction (for which, see for example Raichinov v. Bulgaria, no. 47579/99, § 50, 20 April 2006, and the case-law cited therein). In view of the margin of appreciation left to Contracting States a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 59, ECHR 2007-..., Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004-II and Rumyana Ivanova v. Bulgaria, no. 36207/03, § 68, 14 February 2008). Nevertheless, the Court notes that when a statement, whether qualified as defamatory or insulting by the domestic authorities, is made in the context of a public debate, the bringing of criminal proceedings against the maker of the statement entails the risk that a prison sentence might be imposed. In this connection, the Court recalls that the imposition of a prison sentence for a press offence will be compatible with journalists' freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired, as for example, in the case of hate speech or incitement to violence (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 115, ECHR 2004-XI). For the Court, similar considerations should apply to insults expressed in connection with a public debate. The Court would further observe that the Parliamentary Assembly of the Council of Europe in its Resolution 1577 (2007) urged those member States which still provide for prison sentences for defamation, even if they are not actually imposed, to abolish them without delay (Resolution Towards decriminalisation of defamation adopted on 4 October 2007).

The Court considers that the penalties in the present case, although they might be viewed as quite severe as such, were, seen against the background of the circumstances of the case, proportionate in regard to the competing interests at stake. The severity of the sentence and the amounts of compensation awarded must thus be regarded as falling within the respondent State's margin of response in the circumstances of the instant case. Nor can it be argued that the penalties imposed produced a “chilling effect” on media freedom seen in terms of investigative journalism and the right of the public to be informed of matters of public concern. The commission of a crime and the circumstances in which it is committed are matters of public concern. The Court's case-law, however, clearly illustrates that other imperatives have to be weighed in the balance before an incident is reported by the media to the public as fact. The Court has already underscored the importance of the presumption of innocence in this connection. The right to reputation of third parties is of equal importance especially where serious accusations of sexual misconduct are concerned.

In conclusion, the reasons relied on by the domestic courts, especially by the Appeal Court which in its judgment referred in particular to the Court's case-law, were sufficient to show that the interference complained of was “necessary in a democratic society”. Moreover, the sanctions imposed were proportionate. Having regard to all the foregoing factors, and in particular the margin of appreciation afforded to the State in this area, the Court considers that the domestic courts struck a fair balance between the competing interests involved.

Accordingly, there has therefore been no violation of Article 10 of the Convention.

FOR THESE REASONS, THE COURT

Declares the application admissible unanimously;

Holds by five votes to two that there has been no violation of Article 10 of the Convention.

Done in English, and notified in writing on 6 April 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) Dissenting opinion of Judge Bratza;

(b) Dissenting opinion of Judge Bianku.

N.B.
T.L.E.

DISSENTING OPINION OF JUDGE BRATZA

I am unable to agree with the majority of the Chamber that the applicants' Convention rights were not violated in the present case. In my view, the prosecution and conviction of the applicants and the penalties imposed and damages awarded against them for publishing the article on 11 May 2001 amounted to a disproportionate interference with their freedom of expression and were in clear violation of their rights under Article 10.

In reaching this conclusion, I place reliance on a number of specific features of the case to which, in my view, the majority have given no, or no sufficient, weight.

In the first place, the events referred to in the article were clearly matters of public interest and, as is acknowledged in the judgment, were described in a manner which was short, concise and objective and in a tone which was moderate and not sensational or salacious. The article did not identify the student concerned, recording only that she was an adult; it included no photographs nor did it mention the names of the alleged assailant or of any of those who allegedly participated in the incident.

Emphasis is placed by the majority of the Chamber on the fact that, even if unnamed, the players involved could be identified since they belonged to the local sports club which was mentioned by name and since they would be known in their home town, by baseball fans and by a larger public, thereby suffering damage to their reputation. While the accusation made in the article was doubtless very serious, I attach importance to the fact that it did not suggest that all or any particular members of the team were involved in the alleged rape; one was, indeed, expressly exonerated, the article recording that the player had intervened to stop the assault. In this respect the case bears a strong resemblance to that of Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 67, ECHR 1999-III, in which it was alleged that members of the 17-man crew of a seal hunting vessel, the M/S Harmoni, had committed reprehensible and unlawful acts of cruelty on the animals. The impugned article named 10 crew members whom the seal hunting inspector had exonerated. While the remaining crew members of the vessel were easily identifiable, the Court observed that the potential adverse effect of the impugned statement on the reputation and rights of each individual was “significantly attenuated by several factors. In particular the fact that the criticism was not an attack against all the crew members or any specific crew member (see the Thorgeir Thorgeirson v. Iceland judgment of 25 June 1992, Series A no. 239, p. 28, § 66)”. In the same way, in the present case the impact of the article was substantially attenuated by the fact that no accusation was levelled against any specific team member or against all the members of the team.

Secondly, although the article was published some months after the alleged assault, it accurately recorded a contemporary statement made by the student herself one day after the alleged rape. It has never been disputed that the statement was made; nor has it been disputed that the statement was supplied to the folk high school of the town or that the school reported the alleged incident at the time to officials of the town, to the management of the baseball team in question and to its main sponsor. The applicants claimed in the domestic proceedings that the student's statement had also been corroborated by several witnesses who had been interviewed by the magazine but who wished to remain anonymous and whose identity could not be disclosed.

The Appeal Court found that, despite this evidence, the applicants had failed to show that they had sufficient reasons to believe the accusations to be true: they had not tried to contact the student herself, the players or their team and, by not revealing their sources, they had taken the risk of being convicted of defamation.

In my view, this is to impose too heavy a burden of proof on defendant journalists in a criminal trial for defamation. It is, I consider, of central importance that the allegation of rape was not made for the first time in the magazine article published in May 2001. It was an allegation which had been formally made in a signed and witnessed statement and notified not merely to public officials but to the management of the team itself some 8 months before. What, to my mind, is more striking than any failure on the part of the applicants to seek the comments of the team on the allegation, is the apparent failure on the part of the public officials or management of the team to investigate the allegation at the material time with a view to establishing its truth or falsity and, in the event of its being found to be false, to issue a denial or to take action against the student herself for defamation. In these circumstances, to hold not only that the applicants, as defendants, were required to adduce further proof of the truth of the allegation but that they could only do so by disclosing their sources and identifying witnesses to whom they had guaranteed anonymity is to set the bar too high.

For substantially the same reasons, I find no force in the Government's argument that, since the comments of the team had not been sought in advance of the publication of the article, the players had not been given an effective opportunity to defend themselves. The team and its members had been aware of the allegations and were in a position to answer them long before the article was published and, when invited by the magazine to reply to the allegations, did so merely by denying that any of the players were guilty of any crime.

Thirdly, I note that when the case was referred to the police after publication of the article and became the subject of an investigation, the student's account that she had attended a party to celebrate the team's victory and had there been raped by a member of the team was not rejected as a fabrication. According to the press release issued by the police in April 2002, the investigation was suspended only because the victim of the alleged rape had not been able to identify the offender or offenders or “to clarify the event in such detail that the offence could be attributed to a particular person or persons”.

Finally, in assessing the proportionality of the interference, I attach considerable weight to the fact that resort was had to criminal proceedings against the applicants and to the combination of the penalties imposed and the very substantial award of damages made in favour of the members of the team.

It is true that the Court has consistently held that, in view of the margin of appreciation left to Contracting States by Article 10, a criminal measure in response to defamation cannot, as such, be considered disproportionate to the aim pursued. However, it is also true that, in holding an interference with freedom of expression to have been disproportionate, the Court has on several occasions placed reliance on the fact that recourse could have been had to measures other than criminal sanctions, notably civil remedies (see, for example, Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998-VII, §§ 51 and 57; Raichinov v. Bulgaria no. 47579/99, § 50, 20 April 2006). There appears to have been no reason in the present case why members of the team could not have been left to pursue their civil remedies against the applicants had they seen fit to do so.

While acknowledging that the applicants were made subject to criminal law sanctions and that the penalties imposed might be viewed as “quite severe”, the majority of the Chamber consider that they may be seen as proportionate having regard to the competing interests at stake. I cannot agree. The individual applicants were not only convicted of a criminal offence but were ordered to pay 60 day-fines amounting to EUR 3,540 and EUR 1,920, respectively. In addition, all three defendants to the domestic proceedings, together with the publishing company, were ordered to pay damages and costs and expenses jointly and severally in a total amount of EUR 89,000 plus interest to the members of the baseball team, out of which EUR 81,600 plus interest was attributable to the present applicants before the Court. Even if, contrary to my view, the prosecution and conviction of the applicants had been otherwise justified under Article 10, I consider that the very substantial sums imposed by way of fines and awarded in compensation, in a case where no individuals had been identified as having committed or participated in the alleged rape, were out of all proportion to any legitimate aim served.

DISSENTING OPINION OF JUDGE BIANKU

I voted for a violation of Article 10 of the Convention in this case. While I join Judge Bratza in his dissenting opinion I would like to add the following.

From my reading of the case I think that more attention should be given to the fact that the article written by the applicants mentioned especially that the events were reported to, among others, the city officials.

I do understand the concerns of the majority of the Chamber in relation to the responsibility of the media in reporting serious allegations such as the one at issue. But, on the other hand, I do consider that as such, the reporting of an allegation for rape to the local authorities was a matter of fact in this case. Their inaction as well was a matter of fact. I do consider that the reaction – especially inaction - of public authorities in cases of allegations of rape is of public interest and even concern, which leads also to a positive obligation of the authorities to intervene (see X and Y v. Netherlands, no. 9878/80, 26 March 1985, in Reports 1985, § 23 and MC v. Bulgaria (Application no. 39272/98) 4 December 2003 in Reports 2003-XII, §§ 150-153). It is true that the presumed victim in this case was an adult, contrary to the cases to which I refer above. Nevertheless, to my mind, the reaction of local authorities over allegations of rape remains a question of public concern.

Under this perspective, in addition to the arguments put forward by Judge Bratza in his dissenting opinion, I consider that the criminal conviction of the applicants and the heavy damages they were ordered to pay in this case were not proportionate under Article 10 § 2 of the Convention.