Communicated on 20 November 2015

FIRST SECTION

Application no. 58781/13 Olafur ARNARSON against Iceland lodged on 21 August 2013

STATEMENT OF FACTS

The applicant, Mr Ólafur Arnarson , is an Icelandic national who was born in 1963 and lives in Garðabær . He is represented before the Court by Mr Gunnar Ingi Jóhannsson , a lawyer practising in Reykjavík.

A. The circumstances of the case

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

At the material time, the applicant was a journalist and a freelance writer for the web-based media site Pressan .

The Federation of Icelandic Fishing Vessel Owners (hereafter “the LIU”) represented fishing vessel owners in Iceland and safeguarded their mutual economic, financial, legal, technical and social interests.

The applicant claimed that a private website, B, was publishing anonymous blogs, constantly lobbying for the LIU and discrediting persons who spoke against the LIU.

On 21 July 2010 a newspaper, DV, published an article regarding rumours that the LIU was providing financial support to website B. It was alleged that this support amounted to 1,500,000 Icelandic Krónur (ISK) each month.

On the same day the applicant published an article on Pressan under the headline “ LIU pays 20 million for offensive material” and referred to the article in DV . The chief financial officer (hereafter “A”) of the LIU, sent a short statement to Pressan claiming that the LIU had not supported website B. The statement was published on Pressan on 23 July 2010.

On 24 July 2010 the applicant published an article on Pressan where he responded to A ’ s statement. The article stated that A had to do better than just denying that direct payments were made to the website B and that the LIU, directed by A, was accountable for the offensive material published anonymously on website B. Furthermore, the applicant called into question whether or not the respectable representatives of the LIU ’ s member companies accepted the organisation ’ s funds being paid through intermediaries to gossips such as the owners of website B.

On 26 July 2011 the applicant published a third article on the matter on Pressan . The article stated that the LIU supposedly supported website B with ISK 20 million annually through companies owned by [Mr Y] who was also the owner of website B. Furthermore, the article stated that the applicant knew that not all LIU board members were aware of the organisation ’ s support for the offensive material on website B since the payments were well disguised in the organisation ’ s financial records.

Moreover, it stated that the applicant had been told that it was possible that none of the LIU ’ s board members knew about the organisation ’ s millions being used to support anonymous slander on website B and that [A] alone had decided to use the funds in this way. The applicant added that he had not received confirmation of the last statement. A picture of A appeared beside the text of the article.

On 28 December 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the following statements be declared null and void:

A. “The LIU, directed by [A], is left accountable for the offensive material that is published anonymously on the gossip [website B]”

B. “Then there is the question of whether respectable representatives of the LIU ’ s member companies accept that the organisation ’ s funds are being paid through intermediaries to gossips such as the owners of [website B]”

C. “The LIU supposedly supports [website B] with almost ISK 20 million annually through companies owned by [Mr Y]”

D. “I know that some of the LIU ’ s board members are not aware of the support for the offensive material on [website B], because the payments are well disguised in the organisation ’ s financial statements. I have been told that it is possible that no LIU board members know that the organisation ’ s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation ’ s funds in this way”

By judgment of 29 November 2012 the District Court found that only one of the statements, namely that under item D above, had been defamatory and ordered the applicant to pay A ISK 300,000 in non ‑ pecuniary damages. It declared the statement null and void.

The judgment contained the following reasons:

“ ... In the court ’ s view the following statement applies directly to [A]: “I know that some of the LIU board members are not aware of the financial support for the offensive writings on [website B], because the payments are well disguised in the organisation ’ s financial statements. I have been told that it is possible that no members of the LIU board know that the organisation ’ s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation ’ s funds this way”. [The applicant] does not maintain that this does not apply directly to [A], his plea for acquittal is based on the fact that the statement does not imply that [A] has committed criminal offences; furthermore he claims that this is not something he maintains, since he pointed out [in the article] that he was not able to confirm that statement.

The evaluation of whether or not the statement includes an accusation of a criminal act or is defamatory will not be based on how [the applicant] understands it but on how readers are expected to perceive and interpret it. The claim that the payments to [website B] have been disguised in the organisation ’ s financial statements seems to imply that [A], who is responsible for the LIU ’ s financial accounts as the CEO of the organisation, condones accounting deceptions to hide the alleged support to [website B]. [The applicant] cannot prove the statement so it is considered not to be proved.

The court considers that the second part of the statement, “I have been told that it is possible that no LIU board members know that the organisation ’ s millions are being used to support anonymous slander on [website B] - that the CEO alone decided to use the organisation ’ s funds in this way” , can be understood as an insinuation of breach of trust and negligence at work as it implies that [A] allocated LIU funds against the board ’ s will and without authorisation. [The applicant] has not shown that the statement is true, for this he carries the burden of proof.

The aforementioned statement is considered to be defamatory for [A] and likely to damage his reputation and honour. In accordance with the aforementioned and with reference to Article 241(1) of the Penal Code no. 19/1940 the statement is decla red null and void. ...”

The applicant sought leave to appeal to the Supreme Court which was refused on 25 February 2013.

B. Relevant domestic law

The relevant provision of the Icelandic Constitution ( Stjórnarskrá lýðveldisins Íslands ) reads as follows:

Article 73

“Everyone has the right to freedom of opinion and belief.

Everyone shall be free to express his thoughts, but shall also be liable to answer for them in court. The law may never provide for censorship or other similar limitations to freedom of expression.

Freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions.”

The Penal Code No. 19/1940 ( Almenn Hegningarlög ), Chapter XXV, entitled “Defamation of character and violations of privacy”, sets out the following relevant provisions:

Article 234

“Any person who harms the reputation of another person by an insult in words or in deed, and any person spreading such insults shall be subject to fines or to imprisonment for up to one year.”

Article 235

“If a person alleges against another person anything that might be harmful to his or her honour or spreads such allegations, he shall be subject to fines or to imprisonment for up to one year.”

Article 236

“Anyone who, against his or her better knowledge, makes or disseminates a defamatory insinuation shall be liable to up to two years´ imprisonment.

Where such an insinuation is published or disseminated publicly even though the person publishing or disseminating it has no reason to believe it to be correct, the sentence shall be a fine or up to two years´ imprisonment.”

Article 241

“In a defamation action, defamatory remarks may be declared null and void at the demand of the injured party.

A person who is found guilty of a defamatory allegation may be ordered to pay to the injured person, on the latter ’ s demand, a reasonable amount to cover the cost of the publication of a judgment, its main contents or reasoning, as circumstances may warrant in one or more public newspapers or publications.”

Section 26(1) of the Tort Liability Act No. 50/1993 ( Skaðabótalög ) reads:

“A person who

a . deliberately or through gross negligence causes physical injury or

b . is responsible for an unlawful injury against the freedom, peace, honour or person of another party may be ordered to pay non-pecuniary damages to the injured party.”

Section 51 of the Media Act No. 38/2011 ( Lög um fjölmiðla ) reads:

Article 51

“Liability for textual content .

If textual content is in violation of the law, penalties and criminal and compensatory liability shall be as follows:

a. An i ndividual shall be liable for the content he writes in his own name or with which he clearly identifies himself if he is domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds. If textual content is correctly quoted as being that of a named individual, the person quoted shall be liable for his own statements if he gave consent for their being published or made available and he is either domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds.

b. The purchaser of commercial communications, whether an individual or a legal person, shall be liable for their content if he is domiciled in Iceland or is subject to Icelandic jurisdiction on other grounds.

c. In instances other than those covered by items a and b above, the content manager in question and/or the person liable for the media service provider shall be liable for the content published.

Media service providers shall be liable for the payment of fines and compensation payments that their employees may be ordered to pay under this Article.

Media service providers shall be obliged to provide any persons who consider they are the victims of a violation as a result of the publication of text content with information indicating who is liable for the content.”

COMPLAINTS

The applicant complains that the District Court judgment of 29 November 2012, in respect of which leave to appeal was refused by the Supreme Court on 25 February 2013, entailed an interference with his right to freedom of expression under Article 10 of the Convention that was not necessary in a democratic society.

QUESTIONS TO THE PARTIES

1. Did the District Court in its judgment of 29 November 2012, in respect of which leave to appeal was refused by the Supreme Court on 25 February 2013, apply standards that were in conformity with the principles embodied in Article 10 (and Article 8) of the Convention, as interpreted in the Court ’ s case-law?

2. Was the interference complained of necessary in a democratic society? In other words, did it correspond to a pressing social need, were the reasons adduced by the national authorities to justify the interference relevant and sufficient, and were the measures taken proportionate to the legitimate aim or aims pursued?