Resolution CM/ ResDH (2009)7 [1]

Execution of the judgment of the European Court of Human Rights

Tønsbergs Blad As and Haukom against Norway

(Application No. 510/04, judgment of 1 March 2007, final on 1 June 2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns a violation of the freedom of expression following the private criminal defamation proceedings in which the applicants were sanctioned for having published articles on an alleged breach of permanent residence requirements (violation of Article 10), (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with Norway ’ s obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, the respondent state paid the a p plicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close its examination.

Appendix to Resolution CM/ ResDH (2009)7

Information about the measures to comply with the judgment in the case of

Tønsbergs Blad As and Haukom against Norway

Introductory case summary

This case concerns a violation of freedom of expression of the applicants, the Tønsberg Blad AS (the company which publishes the regional newspaper Tønsberg Blad ) , and Ms Haukom (editor-in-chief of the newspaper at the material time). Following the publication of an article about seaside property, the owners of which were suspected of failing to respect the requirement of permanent residence, in 2002 the applicants were convicted of criminal defamation in a private prosecution brought by Mr Rygh , a rich industrialist and one of the owners (violation of Article 10).

The European Court found that the purpose of the article was to illustrate a problem of public interest. It recalled that assertions at issue had consisted of factual statements, not value judgments. What was alleged was not a criminal offence, but a breach of the residence requirements, as well as whether those requirements should be maintained, modified or repealed. The allegations had moreover been presented with precautionary qualifications, regard being had to the qualifications and counterbalancing elements contained in the same issue, as well as a subsequent follow-up article. Furthermore, the journalist could not in the Court ’ s opinion be blamed for not having ascertained for himself whether the residence requirements were applicable to the property used by Mr Rygh . The Court accordingly concluded that the proceedings and the sanctions imposed on the applicants, i.e. nullity of the statements made and the payment of about 90 000 euros as non-pecuniary damages and costs and expenses, had constituted an excessive and disproportionate burden on the applicants, capable of having a dissuasive effect on press freedom in the respondent state.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Costs and expenses

Additional interest

Total

170 000 EUR

20 000 EUR

280 000 EUR

Paid on 28/11/2007

b) Individual measures

The European Court awarded just satisfaction in respect of the pecuniary damages suffered by the applicants following the domestic proceedings at issue. According to the information provided by the Norwegian Ministry of Justice on 3/01/2008, neither Tønsbergs Blad AS nor its chief editor Mr Haukom has any criminal record related to the case.

II. General measures

Certain measures to facilitate the direct application by Norwegian courts of the principles affirmed by the European Court on freedom of expression had been already adopted, in particular in the context of the cases Blådet Tromsø A/S and Pål Stensås , judgment of 20/05/1999, Nilsen and Johnsen , judgment of 25/11/1999 and Bergens Tidende , judgment of 2/05/2000, examination of which was closed by Resolutions ResDH (2002)69, ResDH (2002)70 and ResDH (2002)71. Following these cases, Article 100 of the Constitution on freedom of expression was amended in 2004. The second paragraph, which is relevant for this case, reads “No person may be liable in law for having imparted or received information, ideas or messages unless this can be justified in relation to the grounds for freedom of expression, which are seeking of truth, the promotion of democracy and the individual ’ s freedom to form opinions. Such legal liability shall be prescribed by law”. In the view of the government, the current formulation of this paragraph, applied in the light of the case-law of the Supreme Court and the European Court of Human Rights, will ensure a proper balance between the right to freedom of expression and other rights, such as the right to privacy. In addition, the government is currently in the process of fully revising the General Criminal and Civil Code, thereby ensuring the application of defamation law in accordance with Norway ’ s obligations under the European Convention on Human Rights.

Given the measures already adopted or being adopted, and the direct effect of the European Convention in Norway, publication and dissemination of the European Court ’ s judgment to all competent courts should be sufficient to guarantee that the requirements of Article 10 of the Convention and the case-law of the European Court will be taken into account in the future, so as to prevent new similar violations. In this context it should be noted that a summary of the Tønsbergs Blad AS and Haukom judgment was published in Norwegian in the judicial database Lovdata ( http://www.lovdata.no/avg/emdn/emdn-2004-000510-norge.html ). The Lovdata database is widely used by all who practice law in Norway : lawyers, civil servants, prosecutors and judges alike.

In addition, the judgment in the present case has been analysed in a widely read legal journal (“Borderline setting from Strasbourg in the case Tønsberg blad ”, in Jussens Venner , No.5/2007), and mentioned in various articles on different internet sites:

News from the Nor wegian Centre for Human Rights, ( http://www.hum a nri g hts . ui o .no/omen h eten / nytt/aktuelt / history.html ); Norsk Redaktørforening (Association of Norwegian Editors), ( http://www.nored.no/m d Home.asp?aid=14489&gid=6716 ); Tønsberg Blad , ( http://www.tb.no/apps/pbcs.dll/ a rticle?AID=/20070301/NYHETER/70301003/1085 / AT ).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent new similar violations and that Norway has thus complied with its obligations under Article 46, paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 9 January 2009 at the 1043rd meeting of the Ministers’ Deputies