FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53678/00 by Pekka KARHUVAARA and Kustannusosakeyhtiö Iltalehti against Finland

The European Court of Human Rights (Fourth Section), sitting on 10 February and 1 June 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr J. Casadevall , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 20 November 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the parties' oral submissions at the hearing on 10 February 2004,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a publishing company called Kustannusosakeyhtiö Iltalehti (“Iltalehti”). It is a limited company based in Helsinki. The second applicant is the company's editor-in-chief , Mr Pekka Karhuvaara, a Finnish national, born in 1954 and resident in Helsinki. They are represented before the Court by Mr Matti Wuori, a lawyer practising in Helsinki. At the oral hearing on 10 February 2004 the applicants were further represented by Mr Risto Ryti, another lawyer in Helsinki. The respondent Government were represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs. At the oral hearing the Government were further represented by Mr Ilari Hannula, counsellor of legislation in the Ministry of Justice, and Ms Leena Leikas, legal officer in the Ministry for Foreign Affairs.

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The applicant company publishes a newspaper entitled Iltalehti which has a circulation of approximately 120,000 copies. On 31 October 1996 it published an article on a criminal trial concerning drunken and disorderly behaviour, including an assault on a police officer, by Mr A., a lawyer practising in Seinäjoki. Follow-up stories were published on 21 November and 10 December 1996, reporting the verdict whereby the defendant was convicted and sentenced to six months' suspended imprisonment. It was reported in Iltalehti that the defendant was the husband of Mrs A., a Member of the Finnish Parliament and the Chairman of its Committee for Education and Culture.

The trial of Mr A. had been widely publicised and discussed locally and the role of Mrs A. – herself in no way involved in the criminal proceedings – had become the subject of, inter alia , political satire in a programme broadcast on the main national channel.

In April 1997 Mrs A., who did not dispute the facts as presented by Iltalehti , instituted proceedings against the applicants  together with  two of the journalists involved on the grounds that the reporting by Iltalehti had both been libellous and infringed on her privacy. She requested that the respondents be sentenced on three counts each, and claimed compensation for non-pecuniary damage for suffering caused by the articles. Moreover, she invoked Section 15 of the then Parliament Act ( valtiopäiväjärjestys, Riksdagsordning ) which stipulated that Members of Parliament as well as parliamentary officials were to enjoy special protection in the discharge of their duties and for the duration of parliamentary sessions. Criminal offences, consisting of words or physical acts, violating the rights of the Members of Parliament or officials while the Parliament was in session, or even subsequent physical violence, were to be regarded as being committed in particularly aggravating circumstances. According to A. this provision was applicable both in relation to the criminal charges and in determining the amount of damages in her case. She argued that the articles had caused her particular suffering as she had been publicly associated with a criminal act that was in no way connected to her person or function as a Member of Parliament.

As an editor-in-chief Mr Karhuvaara admitted to being superficially aware of the type of material published but denied any detailed prior knowledge of the specific material in question. According to Section 32 of the then Freedom of the Press Act ( painovapauslaki, tryckfrihetslag ; 1/1919, replaced by Act no. 460/2003 in 2004), an editor-in-chief is ultimately responsible for any original material published in his newspaper or periodical, regardless of whether he has in fact been familiar with its contents. He found this to be contrary to the presumption of innocence. The defendants also argued that they had only mentioned in their articles that Mrs A. was married to Mr A., a fact which was not denied by Mrs A. In their view that could not be regarded as a defamatory statement. Mrs A. had not been otherwise mentioned in the articles. Moreover, the case had already been published locally and contained no new information as such. They also argued that a Member of Parliament, as a public political figure, must tolerate more from the media than an “average citizen” and that it was particularly disturbing that a Member of Parliament was trying to limit the defendants' freedom of expression.  

On 27 March 1998 the District Court ( käräjäoikeus, tingsrätt ) of Vantaa convicted Mr Karhuvaara and the two other journalists on one count of infringement of privacy under particularly aggravating circumstances within the meaning of Section 15 of the Parliament Act. Mr Karhuvaara was ordered to pay fines amounting to FIM 47,360 (approximately 7,965 euros). The two other journalists were both ordered to pay fines amounting to approximately 840 euros. In addition, all the defendants including Iltalehti , were ordered to pay damages as requested by the plaintiff, i.e. to the full amount of FIM 175,000 (approximately EUR 29,400). The defamation charges were dismissed. The District Court found that the fact that the actions of the plaintiff's husband and the criminal proceedings against him had been well-known in their home district and that the local newspapers had been reporting the matter had no bearing on the defendants' liability. According to the judgment, it was the nation-wide publicity accorded by Iltalehti and infringing the plaintiff's protected private domain that had essentially constituted the criminal offence in question. In the determination of the amount of compensation for suffering the District Court noted that the plaintiff herself, especially as she was also a medical doctor and thus an expert, was best suited to appraise her own condition and the damages thus caused.

On 3 December 1998 the Court of Appeal ( hovioikeus, hovrätt ) of Helsinki dismissed the joint appeal of the defendants and upheld the District Court's judgment without any observations on the merits of the case, save for a minor correction of the lower instance's statement as to the alleged illegal benefit accruing to the publishers. The Court of Appeal added that regardless of this correction the damages ordered to the plaintiff were not to be considered as excessive.

On 25 May 1999 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the defendants leave to appeal.

B. Relevant domestic law and practice

Article 8, subsection 1 (969/1995) of the 1995 Constitution Act (Suomen hallitusmuoto, regeringsformen ), as in force at relevant time, stipulated that the private life, honour and home of every person was to be secured. This provision corresponds to Article 10 of the 1999 Constitution ( perustuslaki, grundlagen ; 731/1999).

Article 10, subsection 1 of the 1995 Constitution, as in force at the relevant time, afforded every one t he freedom of expression. Freedom of expression entailed the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. This provision corresponds to Article 12 of the 1999 Constitution.

Section 15, subsection 1 of the Parliament Act ( valtiopäiväjärjestys, riksdagsordning) , as in force at the relevant time, read as follows:

“If a person, either in the course of a parliamentary session or while a Member of Parliament is travelling to or from Parliament, abuses the said Member of Parliament by any word or deed, knowing that the person so abused is a Member of Parliament, or if a person assaults a Member of Parliament after a parliamentary session because of the manner in which he or she has carried out his or her  duties, the fact that the victim of the offence was a Member of Parliament shall be deemed to be a seriously aggravating circumstance.”

This provision was later repealed by the 1995 Constitution (Article 131).  

Chapter 27 (908/1974), section 3a of the Penal Code ( rikoslaki, strafflagen ), as in force at the relevant time, read as follows:

“A person who unlawfully, through the use of the mass media or in another similar manner, publicly spreads information, an insinuation or an image depicting the private life of another person, conducive to causing him or/her damage or suffering, shall be sentenced for invasion of privacy to imprisonment for at most two years or to a fine. Publication that deals with a person's behaviour in a public office or function, in professional life, in a political activity or in another comparable activity, shall not be considered invasion of privacy, if the reporting was necessary for the purpose of dealing with an important social matter.”

According to the Government, persons in respect of whom the protection of private life is narrower in scope include public officials, politicians and persons with important positions in the economic life (Government Bill, HE 239/1997, p. 32).

Chapter 27, section 3a was repealed in 2000 by section 8 in Chapter 24 (531/2000) of the Penal Code, which reads as follows:

“ Dissemination of information violating private life : A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, so that the act is conducive to causing that person damage or suffering, or subjecting that person to contempt, shall be sentenced for an invasion of personal reputation to a fine or to imprisonment for at most two years.                                                       

The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or public position, or in a comparable position, shall not constitute an invasion of personal reputation, if it may affect the evaluation of that person's activities in the position in question and if it is necessary for purposes of dealing with a matter of importance to society.”

According to the Report of the Law Committee of Parliament ( lakivaliokunta, lagutskottet ) functions in respect of which the protection of private life is, under subsection 2, narrower in scope, include political functions, business functions, and public functions or duties. Information on the private life of persons having such functions may be given where the information may affect the assessment of their performance of duties. Furthermore, the person's consent to providing the information is relevant to the assessment of the lawfulness of the interference. Without an explicit consent, there is usually no reason to believe that the person in question would have consented to the publication of information relating to private life (see the Report of the Law Committee, pp. 4-6).

According to section 39 (909/1974) of the Freedom of the Press Act ( painovapauslaki, tryckfrihetslagen ; 1/1919) the Tort Liability Act shall be applied to the payment of compensation for damage resulting from the contents of printed works.

According to Chapter 5, section 6 of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen; 412/1974), damages may also be awarded for the anguish arising from an offence against someone's liberty, honour or domestic peace or from another comparable offence.

Chapter 17, section 6 (571/1948), of the Code of Judicial Procedure ( oikeudenkäymiskaari, rättegångsbalken ) provides that i f the issue relates to the quantum of damages and no evidence is available or if evidence can only be presented with difficulty, the court shall have the power to assess the quantum, within reason.

The Supreme Court issued two precedents on 11 June 1997 in relation to articles in which information had been published on cases of arson. The first precedent ( KKO 1997:80 ) concerned a newspaper article (summary from the Supreme Court's Yearbook):

“A newspaper published an article concerning cases of arson, in which it was told that the suspect was the wife of the head of a local fire department. As it was not even alleged that the head of the fire department had any role in the events, there was no justifiable reason for publishing the information on the marriage between him and the suspect. The publisher, the editor-in-chief and the journalist who wrote the article were ordered to pay compensation for the suffering caused by the violation of the right to respect for private life.”

The other precedent ( KKO 1997:81 ) concerned an article published in a periodical, which was based on the afore-mentioned newspaper article as well as on the records of the pre-trial investigation and of the court proceedings, without indicating, however, that the newspaper article had been used as a source (summary from the Yearbook):

“Compensation was ordered to be paid for the reason that the article violated the right to respect for private life. Another issue at stake in the precedent was the relevance to the liability for damages and the amount of compensation of the fact that the information had been reported in another publication at an earlier stage.”

The article published in the periodical had also mentioned the name and profession of the head of the fire department, although the offence was not related to the performance of his duties. Thus, in order to give an account of the offence, it was not necessary to refer to his position as head of the fire department or to his marriage with the suspect.

The Supreme Court considered that the fact that the information had been published in print at an earlier moment did not relieve the defendants of their responsibility to ensure, before publishing the information again, that the article did not contain information insulting the persons mentioned in it. The mere fact that the interview of the head of the fire department had been published in the newspaper did not give reason to conclude that he had also consented to its publication in the periodical.

The Supreme Court further found that repeating a violation did not necessarily cause the same amount of damage and suffering as the initial violation. The groups of readers of the newspaper and the periodical were partly different, and the distribution of the newspaper apparently did not entirely cover that of the periodical. Therefore, and considering the differences in the contents and tone of the writings, the Supreme Court found it established that the article published in the periodical was conducive to causing the head of the fire department additional mental suffering.

The publisher and its partners were ordered jointly to pay for the mental suffering caused to the head of the fire department, amounting to FIM 100,000 (EUR 16,819) added by an interest. 

According to the domestic courts, the events written about in the article in question did not concern the plaintiff's conduct in the performance of his duties as head of the fire department and it was not necessary to mention the complainant's name and profession for the purpose of discussing a matter involving a significant public interest. It was not necessary to refer to the complainant's profession in order to report about the offences. By associating the complainant's name and profession with the offences in question the article had unlawfully distributed such information and insinuations concerning his private life as to be conducive of causing him damage and suffering. The disclosure of the complainant's name and the underlining of his profession amounted to an insult. By again reporting about the matter two months after the events the periodical was found to have caused the complainant additional suffering for which a separate compensation was to be paid.

In another Supreme Court judgment ( KKO 1980 II 123 ) it was held as follows (summary from the Yearbook):

“The accused had picked up a photograph of the plaintiff from the archives of a newspaper and published it in the context of an electoral campaign without the plaintiff's consent. He was convicted of a violation of private life and ordered, jointly with the political organisations which had acted as publishers, to pay damages for mental suffering.”

COMPLAINTS

1. The applicants complain under Article 10 of the Convention about the violation of their freedom of expression as they were convicted of reporting nation-wide about criminal proceedings against a Member of Parliament's husband. The criminal proceedings against Mr A. and the marital relationship between Mr and Mrs A. were well-known in the couple's home district. The national courts' holding that the dissemination of this information on the nation-wide level was a criminal offence is contrary to Article 10, especially taking into account the fact that Mrs A.'s position as a national politician of a standing was regarded as an aggravating circumstance within the meaning of Section 15 of the Parliament Act.

2. The applicants also complain, under Article 6 § 2 of the Convention, as the Finnish Freedom of Press Act establishes an a priori presumption of guilt with regard to Mr Karhuvaara as an editor-in-chief.

THE LAW

1. The applicants complain under Article 10 of the Convention about the violation of their freedom of expression as they were convicted of reporting nation-wide about criminal proceedings against the husband of a Member of Parliament. The criminal proceedings against Mr A. and the marital relationship between Mr and Mrs A. were well-known in the couple's home district. The national courts' holding that the nation-wide dissemination of this information amounted to a criminal offence is contrary to Article 10, especially taking into account the fact that A.'s membership of Parliament was regarded as an aggravating circumstance within the meaning of Section 15 of the Parliament Act.

Article 10 reads, in so far as relevant, as follows:

“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.”

The Government concede that the first applicant's conviction as well as the order against him and the second applicant for the payment of damages and costs amounted to an interference with their right to freedom of expression under Article 10. The interference was nonetheless “prescribed by law”, having a basis in Chapter 27, section 3a of the Penal Code and section 15, subsection 1, of the Parliament Act, both as in force at the relevant time. The grounds relied on by the Finnish courts were undoubtedly consistent with the legitimate aim of protecting A.'s private life.

As noted by the District Court, the protection of A.'s private life diminished only in respect of issues which related to her position involving use of such power and the publication of which would be in the public interest. The articles in question in no way referred to her political activities and were produced and marketed in such a manner as to increase the sales of the tabloid.

Information on private life may be highly sensitive even if it is correct as such, and its publication may thus create suffering. Additional suffering is no doubt caused where the information is published in a nation-wide tabloid. As noted by the District Court, the amount of compensation for non-pecuniary damage was to be based on an equitable assessment once A. had provided sufficient evidence of her suffering.

The present case must be seen as being part of the Supreme Court's emerging case-law. The amounts awarded did not significantly differ from the prevailing domestic practice, nor were they disproportionate for the purposes of Article 10 § 2.

Taking into account the margin of appreciation left to the Contracting States in such circumstances, the Government consider that the domestic courts, in the circumstances of the case, interfered with the exercise of the applicants' right in a manner which was proportionate to the legitimate aim pursued and by relying on “relevant and sufficient” reasons.

The applicants maintain their complaint. The events which they had reported had occurred in A's constituency, where they had already become well known as a result of reports by local media as well as a national television channel. As a member of Parliament, A. could not be characterised as a private person in the context at hand. Nor did the applicants disseminate any explicitly private information. The courts' reliance on the Parliament Act was arbitrary inasmuch as it was enacted for the purpose of protecting members of Parliament in the exercise of their public office while in session.

The applicants furthermore contend that the award of compensation for A.'s mental suffering was exorbitant. By way of example, the courts have assessed such suffering experienced by victims of rape or armed robbery at up to FIM 50,000 (about EUR 8,400), whereas the damages awarded to A. totalled FIM 125,000 (over EUR 20,000). In sum, the interference with their freedom of expression was disproportionate to the legitimate aim advanced by the Government.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants also complain, under Article 6 § 2 of the Convention, as the Freedom of Press Act establishes an a priori presumption of guilt with regard to Mr Karhuvaara as an editor-in-chief. The invoked provision reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court would reiterate that in principle the Convention does not prohibit presumptions of fact or of law. In the field of criminal law, however, it does require the Contracting States to confine such presumptions within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence (see, as the most recent case-law, Radio France v. France , 53984/00, § 24, 30 March 2004).

In the present case the Finnish courts, in convicting Mr Karhuvaara, relied on section 32 of the Freedom of the Press Act (in its then form* ) according to which an editor-in-chief was / is ultimately responsible for any original material published in his or her newspaper or periodical, regardless of whether he or she has been familiar with its content.

The Court is satisfied that the Finnish courts did not apply domestic law in a way which conflicted with Mr Karhuvaara's right to the presumption of innocence under Article 6 § 2.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants' complaint concerning the alleged violation of their freedom of expression ;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President