Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 34409/97

by Helen WELLTON

against Sweden

The European Commission of Human Rights (Second Chamber) sitting

in private on 14 January 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 September 1996

by Helen WELLTON against Sweden and registered on 9 January 1997 under

file No. 34409/97;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Swedish national born in 1961. Before the

Commission she is represented by Mr Dan-Louis Schneider, a lawyer

practising in Stockholm.

The facts of the case, as submitted by the applicant, may be

summarised as follows.

a. The particular circumstances of the case

In 1990 the applicant and her husband, C.W.P., founded a company

specialised in the retail of portable computers. From the outset, the

company's public relations policy included the launching of repeated

and extensive advertising campaigns. The applicant, who had previously

worked as a model, featured in all of the company's advertisements.

On 14 March 1994 there appeared in the Swedish daily Aftonbladet

an article criticising the conditions under which the company's staff

had to work and also alleging breaches of labour law. The article,

accompanied by photographs of the applicant, included the following

captions on the front page and page 9 of the paper.

(Translation)

The front page:

"Computer baroness breaks the law."

Page 9:

"'You will be sacked if you enter the ware-house.' Computer

baroness rules her company with an iron hand."

The applicant brought a private prosecution for aggravated libel

(grovt förtal), and in the alternative for libel (förtal), against the

editor-in-chief of the newspaper in the District Court (tingsrätten)

of Stockholm. In so doing, she invoked Chapter 7, Section 4, subsection

14 of the Freedom of the Press Act (tryckfrihetsförordningen, a law

forming part of the Swedish Constitution) and Chapter 5, Sections 1 and

2 of the Penal Code (brottsbalken). In the same proceedings she sued

both the editor-in-chief and the newspaper for damages. She contended

that the front-page caption - "computer baroness breaks the law" - was

calculated to cast doubt on her honour and to expose her to contempt.

Considering the wide distribution of the newspaper she considered the

libel to be of an aggravated character.

The District Court, sitting with three judges and a jury of nine,

held a hearing in the case. The editor-in-chief denied the charges. The

court also heard the applicant and several witnesses, among them the

journalist who had written the article and the applicant's husband. At

the end of the hearing two questions were put to the jury by the court,

namely whether the front-page caption constituted aggravated libel or,

if the jury should give a negative answer to that question, whether it

constituted libel.

By judgment of 2 May 1995, the court dismissed the charges made

by the applicant and her claims for damages. The court noted at the

outset that the jury had replied in the negative to the first question

put to it concerning the alleged unlawfulness of the impugned caption

and in the affirmative to the second question, thus finding the caption

to constitute libel. However, acting in accordance with the provisions

of the Freedom of the Press Act, the court went on to examine the case

independently. In so doing, the court found the caption to be libellous

per se but considered that there had existed satisfactory reasons for

believing that the information was correct. As regards the question

whether it had been permissible to disseminate the information, the

court stated the following:

(Translation)

"It has transpired that both [C.W.P.] and [the applicant]

herself have consciously and also successfully pursued the

policy that [the applicant] should be included in the

company's public relations activities to such an extent and

in such a way that [the applicant] and [the company] could

be identified with each other. It is widely known that this

strategy has been successful. [The applicant] is very

closely connected with [the company] and is nowadays, as

indeed intended, considered to be a symbol for its

activities. The District Court therefore finds ... that it

was permissible for [the newspaper], drawing on the ideas

of the general public, to personify [the company] and, as

intended by the repeated public relations activities, to

refer to [the applicant] as a "computer baroness" when

criticising the company's personnel policy and its relation

to labour law."

The District Court concluded that if a natural person - by virtue

of his or her public appearances on behalf of a company - could be said

to represent the company, criticism against the company and its

activities could not be regarded as an attack on that person, not even

if emphasis were placed on that person as a representative of the

company. - Furthermore, in view of the conclusions reached on the

merits, the court ordered the applicant to pay 32,475 Swedish crowns

in costs.

The applicant appealed to the Svea Court of Appeal (Svea

hovrätt), which held a hearing in the case. Again, the applicant and

the editor-in-chief were heard. All witnesses were re-examined.

By judgment of 7 February 1996, the Court of Appeal upheld the

whole of the District Court's judgment. Subscribing essentially to the

reasons given by the lower court, the appellate court found that the

impugned caption, although libellous in itself, could not be considered

unlawful in the circumstances of the case. In particular, the court

noted that it was a societal interest that abuses of labour law be

revealed. For this reason, so the court stated, it had been permissible

not only to report on the alleged abuses but also - taking into account

the extensive advertising campaigns - to connect them with the

applicant. - The applicant was ordered to pay another 58,180 Swedish

crowns in costs.

Leave to appeal against the Court of Appeal's judgment was

refused by the Supreme Court (Högsta domstolen) on 1 April 1996.

b. Relevant domestic law

Chapter 7, Section 4, subsection 14 of the Freedom of the Press

Act provides the following:

(Translation)

"Taking into account the purpose of a system of general

freedom of the press, as stated in Chapter 1, the following

offences shall be considered as offences under the Freedom

of the Press Act [tryckfrihetsbrott], if they are committed

by means of the printed word and are punishable under the

law:

...

14. libel, by which someone accuses another person of being

a criminal or of leading a reprehensible life or otherwise

disseminates information intended to expose this person to

other people's contempt, ... but not if, in the

circumstances of the case, it was permissible to

disseminate the information concerned and he is able to

establish that the information was true or that it was

based on satisfactory reasons. ..."

Libel is a punishable offence under Chapter 5, Section 1 of the

Penal Code.

Chapter 12 of the Freedom of the Press Act contains special

provisions governing judicial proceedings instituted to establish

criminal liability for prohibited statements in print. The District

Court sits with three judges and, in proceedings brought under the Act,

also with a jury of nine members to examine whether a criminal offence

has been committed, unless the parties on both sides declare their

willingness to have the issue determined by the court without a jury

(Section 2). In any event, matters such as evidence, sentencing,

damages and legal costs are dealt with by the judges alone. If a jury

has given a negative answer to the question whether an offence has been

committed, the defendant must be acquitted. If the reply is in the

affirmative the issue is to be examined also by the judges. Should they

disagree with the jury, they may acquit the defendant or apply a penal

provision imposing a less severe penalty than that applied by the jury

(ibid.). A judgment by the District Court may be appealed against to

the Court of Appeal, whose jurisdiction, like that of the District

Court, is limited by the terms of the jury's verdict (ibid.).

COMPLAINTS

1. Under Article 6 of the Convention the applicant complains that

she was accused of being a criminal and that she was denied a fair

hearing for the purpose of protecting her reputation.

2. Invoking Article 8 of the Convention, the applicant further

complains that, by acquitting the editor-in-chief, the Swedish courts

violated her right to respect for private life.

The applicant also alleges a breach of Article 10 of the

Convention in that the Swedish legislation, allegedly lacking any

effective restrictions to the freedom of expression as regards the

printed word, provides insufficient protection against treatment of the

kind to which she has been subjected.

3. Finally, the applicant contends that the courts failed to make

a distinction between her - as a model appearing in the company's

advertisements - and the company itself and that the courts were

therefore more concerned with the company's activities than the alleged

unlawfulness of the allegations against her. For this reason, so she

claims, she has been discriminated against as compared with contractors

without such affiliations. In this respect she invokes Article 14 of

the Convention.

THE LAW

1. Under Article 6 (Art. 6) of the Convention the applicant

complains that she was accused of being a criminal and that she was

denied a fair hearing for the purpose of protecting her reputation.

The Commission has considered this complaint under paragraph 1

of Article 6 (Art. 6-1), which, so far as relevant, reads as follows:

"In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ...

by [a] ... tribunal ..."

The Commission first finds that the proceedings in question

related to the applicant's "civil rights" within the meaning of Article

6 para. 1 (Art. 6-1) of the Convention, which is therefore applicable

to the present complaint (see, e.g., Eur. Court H.R., Helmers v. Sweden

judgment of 29 October 1991, Series A no. 212-A, p. 14, para. 29).

The Commission has not, however, found any substantiated

allegations in the applicant's submissions which could lead it to

conclude that the proceedings were unfair and that the District Court

and the Court of Appeal reached their judgments unfairly. There is thus

no appearance of a violation of Article 6 (Art. 6) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. Invoking Article 8 (Art. 8) of the Convention, the applicant

further complains that, by acquitting the editor-in-chief, the Swedish

courts violated her right to respect for private life.

The applicant also alleges a breach of Article 10 (Art. 10) of

the Convention in that the Swedish legislation, allegedly lacking any

effective restrictions to the freedom of expression as regards the

printed word, provides insufficient protection against treatment of the

kind to which she has been subjected.

The Commission observes at the outset that the objective of

Article 10 (Art. 10) is to protect the freedom of expression and that -

consequently - this provision cannot be invoked by the applicant in

the present case. Finding, however, that the complaint lodged under

Article 10 (Art. 10) essentially pertains to the right to respect for

private life, the Commission will examine also that complaint under

Article 8 (Art. 8), which provides the following:

"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 Commission recalls that, in the instant case, the Swedish

courts were called upon to strike a balance between two opposing

interests: the right to respect for private life and the right to

freedom of expression. In so doing, both the District Court and the

Court of Appeal found that the impugned caption was libellous in itself

but that, in the circumstances of the case, it had been permissible to

disseminate the information and that the information had been based on

satisfactory reasons. In particular, the Court of Appeal held that

abuses of labour law was a subject of considerable importance in

society and that - considering the extensive advertising campaigns -

it had been permissible to connect these abuses with the applicant.

There is nothing to show that the courts acted arbitrarily when thus

evaluating the facts of the case. Nor are there any elements indicating

that that they failed to strike a fair balance between the individual

interests of the applicant and the general interests of the community.

The Commission therefore cannot find that the judgments as such

disclose any lack of respect for the applicant's private life.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. Finally, the applicant contends that the courts failed to make

a distinction between her - as a model appearing in the company's

advertisements - and the company itself and that the courts were

therefore more concerned with the company's activities than the alleged

unlawfulness of the allegations against her. For this reason, so she

claims, she has been discriminated against as compared with contractors

without such affiliations. In this respect, she invokes Article 14

(Art. 14) of the Convention, which reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as sex, race, colour, language, religion,

political or other opinion, national or social origin,

association with a national minority, property, birth or

other status."

The Commission, having examined the present complaint under

Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the

Convention, finds that the applicant's submissions fail to substantiate

this complaint.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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WELLTON v. SWEDEN

WELLTON v. SWEDEN

LEXI