Communicated on 20 June 2017

FIFTH SECTION

Application no. 43624/14 Mona HØINESS against Norway lodged on 3 June 2014

STATEMENT OF FACTS

1. The applicant, Ms Mona Høiness , is a Norwegian national who was born in 1958 and lives in Oslo. She was represented before the Court by Mr H. Helle, a lawyer practising in Oslo.

A. The circumstances of the case

1. Background to the case

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

3. The applicant is a well-known lawyer practising in Oslo, mainly within the areas of criminal law and child custody cases. She is married to a businessman and has formerly been a talk show host and active participant in public debate.

4. In August and September 2010, the applicant lodged two complaints with the Press Complaints Commission ( Pressens Faglige Utvalg ) against two publications owned and controlled by Mr Trygve Hegnar : the business weekly Kapital and the business daily Finansavisen . Mr Hegnar also owned and controlled the internet portal Hegnar Online . Hegnar Online was an internet portal focusing mainly on business and financial news.

5. All three publications had, since late summer 2010, published articles concerning the applicant ’ s role and relationship to a wealthy, elderly widow. The publications contained direct or indirect suggestions that the applicant had exploited her – to whom the applicant was a hereditary beneficiary – emotionally or financially. After the widow passed away in 2011, her relatives instituted proceedings against the applicant, challenging the validity of the deceased ’ s will. The inheritance case, where the applicant was subsequently acquitted both in the first and second instance (in 2012 and 2014, respectively), was covered extensively in the above publications.

6. The Hegnar Online website featured a forum where readers could start debates and submit comments. More than 200,000 comments were posted every month and the debate forum was among the biggest of its kind in Norway. The forum was divided into many sub-forums, such as “Shipping”, “IT”, “Finance”, “Property”, “Media”, and so on. “Theme of the day” ( “ Dagens tema ”) was one of the sub-forums.

7. In connection with the articles about the applicant and the widow (see paragraph 5 above) a forum thread was started on 5 November 2010 under the heading “Mona Høiness – the case is growing, according to Kapital ” ( “Mona Høiness – saken vokser , sier Kapital ” ). In this thread, many vulgar comments were made. On 6 November 2010 at 12.32 p.m., an anonymous author posted a comment (“comment 1”) in which he in a vulgar manner, inter alia , claimed to “know someone who knows someone” (“ kjenner en som kjenner en ”) who had been lucky (“ heldiggris ”) to have had sex with the applicant, was posted

8. Later in the forum thread, another anonymous commentator responded with disagreement, though in an equally vulgar manner (“comment 2”), stating, inter alia , that the applicant was “ugly as shit” (“ dritstygg ”) and looked “like a who–– “ ( “ som en h–– “). This comment was posted on 8 November 2010 at 5.55 p.m.

9. On the same day, 8 November 2010, the applicant ’ s counsel wrote a letter to the Press Complaints Commission, in the course of the proceedings on one of the above-mentioned complaints concerning the coverage of the inheritance case (see paragraph 4 above), in which it was stated, inter alia , that a fresh report had been published in Kapital , and that the case had been chosen as “theme of the day” on Hegnar Online . Counsel stated that Hegnar there “allowed the posters to present serious and degrading sexual harassment” of the applicant. In the letter, it was expressly stated that this was not to be made part of the existing complaint against Kapital , so as not to delay further the handling of that complaint by the publicist.

10. Mr Hegnar received a copy of the letter and, in an email to the Press Complaints Commission 9 November 2010 stated, inter alia , that Hegnar Online was a separate newspaper with its own editor, unrelated to Kapital . He submitted that it could not therefore be taken into account in a complaint against the latter. The Commission wrote an email to both parties on the following day, in which it stated that it – upon having conversed with the applicant ’ s counsel – noted that the letter of 8 November did not amount to a new complaint, but was an appendix to the documents in the pending case against Kapital and did not relate to Hegnar Online .

11. The two comments were not deleted. The applicant ’ s counsel sent an email on 17 November 2010 at 12.32 p.m. to, inter alia , Mr H., an editor working for Hegnar Online , requesting written confirmation that the comments would be deleted immediately, as Mr Hegnar himself had “declined all responsibility for the matter” ( “ fraskrev seg alt ansvar for saken ”).

12. Mr B. from Hegnar Online responded the same day, at 12.45 p.m., saying that he was sorry that comments in breach of their guidelines had not been deleted, and that he had now deleted the comments he had found.

13. On 31 November 2010, the Press Complaints Commission decided on the applicant ’ s complaints against Kapital and Finansavisen (see paragraph 4 above), and found that both had breached the code of conduct for journalists ( Vær varsom-plakaten ): Kapital for their use of a misguiding headline and Finansavisen for not giving the applicant the opportunity to simultaneous reply.

14. On 3 December 2010 an editor at a radio station ( Radio Norge ) drew the applicant ’ s counsel ’ s attention to another debate that had been started on the Hegnar Online forum. That debate had commenced on 28 November 2010 in the sub-forum “Media”. On 30 November 2010, a comment raising the question whether the applicant “still” (“ fortsatt ”) had sex with a person referred to only by the nickname “ trønderbjørn ” (see paragraph 21 below) (“comment 3”) was posted anonymously.

15. On 6 December 2010 the applicant ’ s legal counsel wrote to Mr H. and demanded confirmation that the comment would be deleted immediately. In an email the same day, Mr H. replied that he had also been contacted by the radio editor on 3 December 2010 and, upon examination, had found that the comment had already been deleted.

16. On 7 January 2011 a complaint concerning the above comments, in addition to other comments concerning the inheritance case, was lodged with the Press Complaints Commission. On 22 February 2011, the Commission concluded that neither comments with a sexual content nor comments that accused the applicant of unethical or unlawful behaviour in the inheritance case were in compliance with the code of conduct for journalists, and that the editors should accordingly have removed them immediately.

2. Proceedings before the City Court

17. On 4 May 2011 the applicant instigated civil proceedings before the Oslo City Court against Hegnar Online , which had by then been incorporated into Hegnar Media AS, and against the editor, Mr H., for defamation. She claimed that her honour had been infringed because of “comment 1, 2 and 3” and that she was therefore entitled to redress.

18. On 4 January 2012 the Oslo City Court ruled in favour of the defendants. The City Court considered that the three comments had not amounted to unlawful defamation as they were apt to offend neither the applicant ’ s honour, nor her reputation.

19. As to “comment 1”, the City Court noted that the comment was tasteless and vulgar, but not in itself an accusation (“ beskyldning ”) of promiscuity or some sort of immoral behaviour. In the City Court ’ s view, it could not harm her reputation (“ omdømme ”) under Article 247 of the Penal Code (see paragraph 32 below). Nor did the comment express disdain or disapproval of the applicant, and it could therefore not harm her honour (“ æresfølelse ”) under Article 246 of the Penal Code (see paragraph 32 below).

20. With respect to “comment 2”, the City Court found again that it was tasteless and unserious. An anonymous comment of this sort could, regardless, not harm the applicant ’ s reputation or honour. It might be considered as ridicule, but had not exceeded the threshold over which ridicule would be unlawful. The City Court also had regard to the fact that “Theme of the day” had been a marginal forum frequented mostly by anonymous persons. That forum was generally unserious and, according to the City Court, most readers would find that the comments said more about those posting them than about the persons mentioned in the comments. Based on an overall assessment, the Cit y Court concluded that “comment 2”, neither alone nor in conjunction with “comment 1”, was capable of harming the applicant ’ s honour.

21. Turning to “comment 3”, the City Court said that this comment had to be interpreted as an allegation that the applicant had a sexual relationship with a person nicknamed trønderbjørn , about whom there was no information. It found that the comment could not harm the applicant ’ s reputation or honour. There was no disdain or disapproval expressed, and since the writer was anonymous there was no reason to take it seriously.

22. The City Court also made an overall assessment of the three comments viewed as a whole, but found that they still did not amount to unlawful defamation.

23. The applicant was ordered to compensate litigation costs of 225,480 Norwegian kroner (NOK) (approximately 24,650 euros (EUR)). The defendants had claimed NOK 290,880 (approximately EUR 30,615) , an amount which the City Court found exceeded what was reasonable and necessary in accordance with the relevant provisions of the Dispute Act (see paragraph 34 below).

3. Proceedings before the High Court

24. The applicant appealed against the City Court ’ s judgment to the Borgarting High Court ( lagmannsrett ) on 31 January 2012. Apart from maintaining that the statements implied unlawful defamation, she submitted that her right to be left in peace ( privatlivets fred ) and her rights under general principles concerning the protection of personality ( det ulovfestede alminnelige rettsvern for personligheten ) had been breached. Moreover, she argued that the comments had been in breach of gender equality legislation. Lastly, she submitted that the defendants had been compensated for an amount of litigation costs exceeding what had been necessary.

25. The High Court heard the case on 10 and 11 September 2013, and delivered its judgment on 24 October 2013.

26. The High Court found it unnecessary to examine the nature of the comments. Instead, it proceeded on the ground that the applicant ’ s claim for redress could in any event not succeed unless the defendants had operated with intention or a sufficient lack of carefulness. It would be decisive whether they had reacted sufficiently rapidly to information about unlawful comments on the forum, and whether the editor or host had an appropriate arrangement for monitoring the site in that respect.

27. With regard to the general system for monitoring the content, the High Court noted that there were “warning buttons” on the website, on which readers could click in order to notify their reaction to comments. Furthermore, editorial staff had the task of monitoring the content and removing comments on their own initiative. However, there had been a very large number of posts on the forum as a whole, and the High Court presumed that only a few discoveries of content to be removed had been made at the relevant time.

28. Turning to the comments in question, the High Court noted that “comment 1” and “comment 2” had been posted on 6 and 8 November 2010, respectively. The applicant had been notified by others of the remarks, and had not read them herself on the website. The editorial staff had been notified of these two comments by email on 17 November 2010, and had responded 13 minutes later that they had been removed. This was clearly an adequate reaction. However, the High Court discussed whether the letter from the applicant ’ s counsel to the Press Complaints Committee on 8 November 2010 implied that Mr Hegnar should have initiated a deletion process at that time. Having regard to the fact that the letter was formally made in a different context, namely the pending complaint against Kapital , and did not contain any request that the comments be removed, the High Court found it appropriate that Mr Hegnar had only considered the letter as a document in the Kapital case. “Comment 3” had been posted on 30 November 2010, staff at Radio Norge had informed the applicant ’ s counsel about it on 3 December 2010 and counsel had contacted Hegnar Online on 6 December 2010. Hegnar Online had by then already looked into the matter, as it had received a similar notification from Radio Norge on 3 December 2010, and on that date noticed that the comment had already been deleted, presumably by a moderator at Hegnar Online . As this comment had, thus, rapidly been deleted on the staff ’ s own motion, there was nothing to support liability on behalf of Hegnar Online .

29. The High Court upheld the City Court ’ s decision on litigation costs before the City Court and awarded the defendants NOK 183,380 (approximately EUR 20,050) in compensation for their costs before the High Court. The defendants had claimed NOK 231,980 (approximately EUR 24,416), but the High Court found that when their counsel operated with a high hourly fee, appropriate for a specialised lawyer, this should be reflected in a lower amount of hours.

4. Proceedings before the Supreme Court

30. On 22 November 2013 the applicant appealed to the Supreme Court ( Høyesterett ) against the High Court ’ s judgment. She contested the High Court ’ s assessment that the defendants had shown sufficient care and alleged that the High Court had erred in law as its reasoning had not been clear with respect to the standard of care required, notably whether it had proceeded on the ground that negligence would suffice for liability, or whether the establishment of gross negligence would have been necessary. She also contested the High Court ’ s assessment of evidence concerning Mr Hegnar ’ s dealing with the letter of 8 November 2010 addressed to the Press Complaints Committee. The applicant pointed out that Mr Hegnar had written an editorial in Kapital on 19 November 2010, in which he had made remarks about how the applicant had complained of comments on the forum. Furthermore, the applicant argued that the High Court had wrongfully proceeded on the ground that standards with respect to moderation of websites with user-generated content had been more lenient in 2010 than at the time of the High Court ’ s judgment. Lastly, she appealed against the High Court ’ s decision on legal fees, notably the amount. The defendant ’ s counsel had operated with a legal fee – of up to NOK 3,900 (approximately EUR 410) per hour – which was so high that there would be a chilling effect on individuals ’ willingness to challenge violations o f Article 8 of the Convention.

31. On 7 February 2014 the Supreme Court ’ s Appeals Leave Committee ( Høyesteretts ankeutvalg ) decided not to grant leave to appeal against either the High Court ’ s judgment as a whole or against its decision on legal costs.

B. Relevant domestic law and practice

32. The relevant provisions of the Penal Code of 22 May 1902 ( straffeloven ) read as follows:

Article 246

“ Any person who by word or deed unlawfully defames another person, or aids and abets thereto, shall be liable to fines or imprisonment for a term not exceeding six months. ”

Article 247

“ Any person who by word or deed behaves in a manner that is likely to harm another person ’ s good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who aids and abets thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.”

A limitation to the applicability of Article 247 followed from the requirement that the expression must be unlawful ( rettsstridig ). While this was expressly stated in Article 246, Article 247 had been interpreted by the Supreme Court to include such a requirement.

33. Section 3-6 of the Compensation Act of 13 June 1969 ( skadeserstatningsloven ) read:

“Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing punishment are fulfilled, pay compensation for the injury sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non-financial injury as the court finds reasonable.

If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher too are liable for the compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in regard to them. The Norwegian Broadcasting Corporation is similarly liable when anybody acting in its service is responsible under the preceding paragraph for a broadcast. The same rule applies to any other broadcasting institution.

In pronouncing judgment which imposes punishment or declares a statement void, the court may order the defendant to pay the victim an amount covering the costs of publishing the judgment. The same rule applies in the case of any conviction under § 130 of the General Civil Penal Code.

...”

34. The relevant sections of the Dispute Act of 17 June 2005 ( tvisteloven ) read:

Section 20-2 Award of costs to the successful party

“ (1) A party who is successful in an action is entitled to full compensation for his legal costs from the opposite party.

...

(3) The court can exempt the opposite party from liability for legal costs in whole or in part if the court finds that weighty grounds justify exemption. The court shall, in particular, have regard to

a) whether there was justifiable cause to have the case heard because the case was uncertain or because the evidence was clarified only after the action was brought,

b) whether the successful party can be reproached for bringing the action or whether he has rejected a reasonable offer of settlement, or

c) whether the case is important to the welfare of the party and the relative strength of the parties justifies an exemption. ”

Section 20-5 Assessment of compensation for costs

“ (1) Full compensation for costs shall cover all necessary costs incurred by the party in relation to the action, unless there is cause to exclude the costs pursuant to special provisions. In assessing whether costs have been necessary, the court shall have regard to whether it was reasonable to incur them in view of the importance of the case. The party may claim reasonable compensation for his own work on the case if the work has been particularly extensive or would otherwise have had to be undertaken by counsel or another qualified assistant.

...

(3) In cases that are ruled on following an oral hearing, a party who claims costs shall submit a statement of costs. The statement shall be submitted at the conclusion of the court hearing. If the amount of some items is unknown, the statement shall be supplemented within the time-limit fixed by the court. Items of expenditure shall be specified so as to give the court an adequate basis upon which to make an assessment. Lawyers ’ fees shall always state the amount and number of hours related to the following stages of the case:

a) the period up to the submission of a writ of summons or reply, alternatively notice of appeal and reply to notice of appeal,

b) the period up to the start of the main hearing or oral finalisation of the case, alternatively the appeal hearing, and

c) the period up to the conclusion of the case in the current instance.

...”

COMPLAINTS

The applicant complains under Article 8 of the Convention that the Government did not sufficiently protect her right to private life and that the imposed liability for litigation costs to the extent seen in the applicant ’ s case had a chilling effect on defamation and privacy cases against media owners.

QUESTION tO THE PARTIES

Did the High Court ’ s judgment of 24 October 2013 (which became final when the Supreme Court ’ s Appeals Leave Committee refused the applicant leave to appeal on 7 February 2014) – in which the defendants, Hegnar Online and Mr H., were not imposed liability and the applicant was ordered to pay their litigation costs – amount to a breach of the applicant ’ s right to respect for her private life under Article 8 of the Convention? (See, for instance, Delfi AS v. Estonia [GC], no. 64569/09, ECHR 2015; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary , no. 22947/13, 2 February 2016; and Pihl v. Sweden ( dec. ), no. 74742/14, 7 February 2017.)