Communicated on 20 November 2015

FIRST SECTION

Application no. 44322/13 Svavar HALLDORSSON against Iceland lodged on 30 April 2013

STATEMENT OF FACTS

The applicant, Mr Svavar Halldórsson , is an Icelandic national who was born in 1970 and lives in Hafnarfjörður . He is represented before the Court by Mr Karl Axelsson , 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 working as a journalist for the newsroom of the Icelandic National Broadcasting Services (hereafter “the RUV”).

The RUV is an independent public service broadcaster, comprising television, radio and online services. The RUV broadcasts news programmes on television every evening at 7 p.m. that last for about 40 minutes. During the news programmes , a series of news items is first introduced by a news anchor in a studio, and then each news item is presented by different news reporters, be it current events, live or pre ‑ recorded interviews or editorial content.

On 24 May, 28 May and 6 December 2010 the RUV broadcast news items, prepared and presented by the applicant, on its news programme at 7 p.m. The subject of all three news items was a loan transaction for 3,000,000,000 Icelandic Krónur (ISK) between an Icelandic company, Y, and a shelf company in Panama, that had been written off in its entirety. The news items were introduced by a news anchor and then a film clip was played, showing pictures related to the subject of the news item while the applicant narrated.

On the evening news on 24 May 2010 the news anchor introduced the news items, stating that the authorities were investigating whether the ISK 3,000,000,000 had made its way back to Iceland and that there was a suspicion that B, the owner of company Y, had returned the money to his business partners. In the film clip, the applicant stated that the Icelandic authorities believed that they had found the money trail and they thought that the money had made its way back to Iceland, not necessarily into B ’ s pockets but into the pockets of his business partners. The applicant then speculated on who the business partners might be and pictures were shown, inter alia, of A, a prominent businessman in Iceland. Lastly, the applicant stated that the question of where the money had ended up would be answered after the authorities ’ investigation.

On the evening news on 28 May 2010, the news anchor introduced the news items by stating that the authorities were investigating whether B, A and C, an investor in Iceland, had jointly planned a business deal where ISK 3,000,000,000 seemed to vanish in Panama. Furthermore, the anchor stated that documents, from the year 2007 and onwards, supported this suspicion and that the documents indicated that the money had found its way back into the pockets of the same group. On the film clip t he applicant stated that the authorities believed that they had found the money trail, as had been previously reported, and that they were in possession of documents indicating that A, B and C had planned the Panama deal in advance, in order to send the money to Panama and then back into their own pockets again, via a circuitous route. Pictures of A, B and C were shown on the screen with the text “under investigation” written below each picture.

On the evening news on 6 December 2010 the news anchor introduced the news item. In the film clip, t he applicant stated that in the spring of 2007 company Y had loaned ISK 3,000,000,000 to the company in Panama. The funds had been transferred to Panama on 24 April 2007 and six days later, on 30 April 2007, a loan agreement had been prepared. On the same day, the loan had been written off in its entirety from the accounts of company Y. Furthermore, the applicant stated that B had issued a declaration claiming that there was nothing suspicious about the loan. Lastly, the applicant stated: “ The Icelandic authorities have also searched for the funds, as we have previously reported, and they believe that they have found the money trail, as they have documents indicating that [B], [A] and [C] organised the Panama deal in advance. That is, they sent the money to Panama, and later the money found its way back, through several detours, into the pockets of the threesome” . Pictures of A, B and C were shown above a world map, a pile of money was shown being divided up into three parts in Panama and each part was then transferred to the pictures of the men.

On 12 January 2011 A lodged defamation proceedings against the applicant before the Reykjaness District Court and requested that the words “[A]” and “threesome” from the above-mentioned statement of the news item broadcast on 6 December 2010 be declared null and void.

Before the domestic courts, the applicant maintained that he had based the news item on information from sources, both verbal and written, that he deemed highly trustworthy . Furthermore, the applicant maintained that when he had prepared the news item he had attempted to contact A by telephone, in vain.

During the proceedings before the District Court the applicant submitted a letter dated 5 September 2011 from the Special Prosecutor confirming that the loan transaction, which was the subject of the news items, had been reported to the police and was under investigation. The Special Prosecutor also stated that this had been confirmed in the media in July 2011.

By judgment of 3 November 2011 the District Court found for the applicant. In its reasoning it referred to the right to freedom of expression and the protection of private life as guaranteed by the Icelandic Constitution.

The judgment contained the following reasoning:

“ ... The banking collapse of 2008 caused great changes to the business environment and society in general. A wave of bankruptcies hit companies and individuals, the value of the krona plummeted and changes were made to the ruling government, to name a few. The media have covered these events since the crises began and the individuals involved have also been the subject of news coverage, including [A]. In determining whether the content of the news item is a part of the social debate and therefore of public interest, it should be kept in mind that [A] himself, as well as the companies he has represented, has been in the media and public debate for many years. [A] has also been very prominent in business, both here and abroad, and in both a negative and positive light. [Company Z], led by [A], was a large shareholder in [F] ... , and held an active share in G...Bank. News of [A] has therefore more often than not been about his role in the banking collapse, and after the collapse of the Icelandic banks in the autumn of 2008 the media was full of news on the banking collapse and crisis, the reasons behind them and related matters. The media have been called upon to disseminate all material that could be of public interest, especially if the content might shed light on elements pertaining to parties who have played key roles in the Icelandic economy. In the light of the circumstances that developed after the banking collapse, [A] will have to withstand personal discussion of his actions and participation in business. Loan facilities and transfers of funds occurring in the lead ‑ up to the bank failure are important news stories that are relevant to the general public. Restricting that discussion through sanctions should only be done after great consideration.

[The applicant] has stated that the news item is based on sources, both verbal and written, that he finds trustworthy. [The applicant] cannot be asked to prove these statements, as the journalist ’ s right to protect his sources and their identity has been upheld in judicial rulings. [The applicant] has also sufficiently demonstrated that he tried to contact [A] before he delivered the news item and he has therefore not violated the National Broadcasting Service ’ s procedures in that respect.

The Court does not agree with [A] that he is accused of actions punishable by law in the news item. The news item must be assessed as a whole and not on the basis of individual statements in the piece. As previously noted, the Court must consider the circumstances under which the statements are made, that they are necessary for a social debate on the causes and repercussions of the bank failure and also that some discrepancies can occur when dealing with complicated loan facilities and business deals. When the statements on [A] are assessed in this light, they are not found to violate the provisions of Articles 234 or 235 of the Penal Code no. 19/1940. ...”

On 30 January 2012 A appealed against the District Court ’ s judgment to the Supreme Court.

By a judgment of 15 November 2012 the Supreme Court overturned the District Court judgment and ordered the applicant to pay ISK 300,000 to A in compensation for non-pecuniary damage, plus interest. The two words were declared null and void.

The judgment contained the following reasoning:

“ ... When the above-mentioned interests are in conflict, the freedom of expression on the one hand and the protection of one ’ s reputation on the other, the conditions under which the statements were made should, inter alia, be considered, as well as the position of the individuals involved, and whether the published information can be considered a part of the general social debate and therefore of public interest.

In assessing where the line should be drawn between freedom of expression, as protected by Article 73 of the Constitution, and the right to privacy, as protected by Article 71 of the Constitution, it is important to determine whether the content published can be considered a part of the social debate and therefore of public interest, see the Supreme Court judgments of 1 June 2006 in case no. 541/2005, 1 March 2007 in case no. 278/2006, 10 November 2011 in case no. 65/2011 and 24 November 2011 in case no. 100/2011. The media play an important role in disseminating information and opinions on social issues. The public has a right to information on such issues and there must be particularly strong reasons for determining that limitations on media freedom are warranted in a democratic society. The collapse that occurred in the Icelandic economy following the failure of the three Icelandic commercial banks in the autumn of 2008 has had a significant and broad effect on all activity in the country and the general public ’ s quality of life. Public debate and media coverage have been very focused on identifying the preceding events and reasons for the collapse, and reporting on the financial business of individuals has often been personal.

When the content of the news item debated in this case is assessed as a whole, and the disputed remarks evaluated in context with other statements in the news report and in consideration of the visual presentation, the comments clearly inferred that [A] had acted unlawfully and pursuant to the general provision of the Penal Code no. 19/1940.

[The applicant] has not presented any documents supporting the legitimacy of the statements, for which he will bear the burden, as it was more incumbent on him rather than [A] to secure such evidence. [The applicant] has also not demonstrated that he sought information from [A] on the content while preparing the news report. He therefore failed in his duty, as outlined in Article 2 of the National Broadcast Service ’ s Rules on News and Related Programming dated 1 May 2008, to seek “... information from both or all parties and attempt to show their points of view as equally as possible”. The Supreme Court therefore finds that [the applicant] could not have been acting in good faith as pertains to the accuracy of the remarks in the news piece. Therefore [A ’ s] demand for the quoted statements to be declared null and void is granted, pursuant to Article 241, cf. Article 235 of the Pena l Code.”

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 2 of the Rules on News and Related Content on the National Broadcasting Services provides:

“News and other related material shall be reported on with fairness and impartiality. Both or all parties shall be contacted for information and their views shall be introduced as equally as possible. News reporters and producers cannot let their personal opinions or interest influence their work. News reporters and producers shall not participate in the work of political parties or associations. Participation in other kinds of representative associations shall be with the knowledge of the news and production director.”

COMPLAINT

The applicant complains that the Icelandic Supreme Court ’ s judgment of 15 November 2012 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 Supreme Court, in its judgment of 15 November 2012, 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?