FOURTH SECTION

Application no. 54125/10 Erla HLYNSDÓ TTIR against Iceland lodged on 17 August 2010

STA TEMENT OF FACTS

The applicant, Ms Erla Hlynsdóttir , is an Icelandic national, who was born in 1978 and lives in Reykjavík. She is represented before the Court by Mr Gunnar Ingi Jóhannsson , a lawyer practising in the same city.

A. The circumstances of the case

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

The applicant is a journalist, working for the newspaper DV .

In its weekend issue of 31 August to 2 September 2007, DV published an article about a high profile criminal case that was being investigated at the time, involving Mr Y and his wife, Ms X. Mr Y had been the representative of a Christian rehabilitation centre called Byrgið (the Shelter) which he had founded in 1996. Byrgið was a rehabilitation centre for people dealing with drug, alcohol and gambling addictions. Accusations against Mr Y had surfaced in December 2006 when a television news programme had published a story in which he was accused of sexually abusing several female patients of Byrgið and embezzlement of public funds that had been granted to it. Documents, including sexually explicit video recordings, appearing to substantiate the allegations against Mr Y, were published on the television programme. After the programme had been aired, three women filed police charges against Mr Y for sexual abuse while they had been patients at Byrgið . Mr Y and his wife were both suspects in the criminal investigation.

The article published in DV was mostly based on interviews with two persons, Ms A who was one of the women who had pressed charges against Mr Y and Mr B who had been the financial manager at Byrgið and a close friend of Mr Y and Ms X. It was entitled “Satan ’ s attacks” and entailed, among other things, Ms A ’ s description of how Ms X had been active in the so-called sex games organised by Mr Y in which female patients of Byrgið had been manipulated and convinced to participate as they had been told that it was part of their healing process. According to Ms A, Ms X had helped to seduce the women and had even sought sexual encounters with them by herself, without her husband. Ms A criticised the fact that Ms X was at the time working as a teaching assistant in a school, stating the following: “I am not a psychologist or a psychiatrist but this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school. In light of [Mr Y ’ s] fantasies about elementary school girls, I think it is not appropriate that the one who hunts for him works in an elementary school .”

Mr B also stated that both Mr Y and Ms X had sexually abused several patients of Byrgið and that he found it strange that, considering Ms X ’ s position, she was allowed to work with children.

The article also referred to comments made by Mr X and Ms Y ’ s lawyer who stated that the accusations against the couple were absurd. He also stated that it was very common that people had the legal status of a suspect during interrogations without later being indicted. Therefore it was not fair to implicate Ms X in any criminal activity. Moreover, he stated that neither of the two had broken the law and he did not think that an indictment would be issued in the case.

On 28 February 2007 Ms X lodged defamation proceedings against Ms A, Mr B and the applicant before the Reykjavík District Court. In her writ, in which she made the five judicial claims described below, she requested that the following statements published by DV in the relevant issue, be declared null and void:

Judicial claim no. 1 [statements made and published by the applicant and (allegedly) Ms A]

a. “[Ms A], ... , claims to have had sex with the couple.”

b. “[Ms A], ... , says that [Ms X] participated in sexual activities with her and [ Mr Y].”

c. “[Ms A] says that [Ms X] was active in her and [Mr Y ’ s] sexual games at first but later on [Ms X] had become very jealous and [Mr Y] had no longer wanted her to participate.”

d. “She participated in our first times together.”

e. “Then she started calling me and sending me messages stating that she wanted to meet me alone.”

f. “[Ms A] says that [Ms X] sought to have sexual encounters with her in private.”

g. “He lied to her, too, ... ”

h. “He also said that he was divorcing his wife.”

i . “ ... this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school ... ... not appropriate that the one who hunts for him works in an elementary school.”

j. “ ... had spread ugly stories about her. “His wife did it to. They would even come up with new stories every day.””

Judicial claim no. 2 [statements made and published by Mr B and the applicant]

k. “They were being trained to be masters in lesbian sex. According to [Mr B] his wife participated in it.”

l. “According to [Mr B], ... , she was fully aware of [Mr Y´s] abuse of the patients and she sometimes participated in the sexual games.”

m. “They both used tools and devices on them.”

n. [Mr B] finds it odd that a woman in this position is working with children.”

In addition, Ms X requested that the respondents be punished and, in solidum , be ordered to pay her 3,000,000 Icelandic krónur (ISK) in respect of non-pecuniary damages and ISK 800,000 to cover the costs of publishing the judgment in the case in three newspapers.

Ms X argued that the responsibility for the statements lay with Ms A and Mr B as they had appeared by name as the interviewees and with the applicant as the author of the article.

By a judgment of 4 December 2008 the District Court found that one statement, that was attributed to Ms A (see item i . above), had been defamatory but it was not proved that it originated verbatim from her. It therefore ordered only the applicant to pay Ms X ISK 100,000 (approximately 550 euros (EUR) ) in compensation for non-pecuniary damage. It also declared the statement null and void but rejected all other claims.

Ms X and the applicant both appealed against the District Court ’ s judgment to the Supreme Court.

By a judgment of 18 February 2010 the Supreme Court upheld the conclusion of the District Court concerning Ms A and Mr B. It also upheld the finding of the District Court concerning the liability of the applicant but only in respect of the latter part of the statement (“ ... not appropriate that the one who hunts for him works in an elementary school.”) . It ordered the applicant to pay Ms X ISK 300,000 (approximately EUR 1,700) in compensation for non-pecuniary damage and ISK 100,000 for the costs of publishing the judgment, plus interest. Its judgment contained the following reasons:

“As stated above, the investigation, which gave rise to the statements that are being disputed in this case, ended with the Supreme Court judgment in case no. 334/2008. In that judgment, the conviction of [Mr Y] was based on, among other things, testimonies of witnesses who also testified that [Ms X] had taken part in sexual activities with him and the female residents at the treatment centre, in a manner similar to the one that is described in the comments that were cited from [Mr B] in subsections k. to m. It follows that it must be considered that those statements have been substantiated and their annulment will therefore not be raised on Article 241, cf. Article 235 of the Penal Code. Moreover, the statement in subsection n. in [Ms X´s] claim for annulment contains a value judgment which does not violate the abovementioned provisions of chapter XXV of the Penal Code. According to the aforementioned, [Ms X´s] claim for the annulment of those statements, which are cited from [Mr B] and specified in subsections k. to n., is rejected.

In her testimony before the District Court, [the applicant] stated that when preparing the article she had had a telephone conversation with [Ms A]. The telephone call had been recorded but the recording had not been preserved. She claimed that the comments attributed to [Ms A] in the article were correctly cited. [Ms A] testified before the District Court that she vaguely remembered a conversation with a journalist from DV , discussing ‘ just something about the Byrgið case. ’ However, she did not acknowledge having said what was referred to in subsections a. to j., but she was asked about each statement. When considering that the statements, which are cited from [Ms A] in subsections a., b., c., d. and h., are, according to the District Court´s premises in the aforementioned criminal case, in substance largely in line with her testimony before the police shortly before the article appeared, and that the defendant acknowledged having discussed the Byrgið case with a journalist from DV , but could not state what she thought she had said to the journalist about the case, it must be considered proved that the statements in these subsections are cited from her. The statements in subsections e., f., g., i . and j. are, on the other hand, not parallel with the testimonies, which [Ms A] gave during the investigation of the case against [Mr Y]. It is therefore not possible to consider that [the applicant] has been able to prove that those statements were cited from [Ms A].

By the Supreme Court judgment in case no. 334/2008, [Mr Y] was convicted of having, among other things, had sexual relations with [Ms A] while she was a patient at Byrgið . However, the testimony given by [Ms A] about [Ms X´s] participation in their sexual activities did not form the basis for that conviction. Regardless of whether it has been successfully proved that the statements in subsections a. to d. in respect of this subject are true, it must be considered that the abovementioned statements cited from [Mr B], which discussed in general terms [Ms X´s] involvement in sexual activities with her husband and the female patients of Byrgið were considered proved. With regard to this it cannot be found that those statements, which were cited from [Ms A] were likely to further damage [Ms X´s] honour. There are therefore no grounds to annul them according to Article 241, cf. Article 235 of the Penal Code.

The content of the statements in subsections e., f., g., h. and j. do not fall within the scope of Article 234 or 235 of the Penal Code and [Ms X´s] claim for their annulment is therefore rejected. The statement in subsection i . is twofold. The first part which states “ ... this person is crazy. I cannot see that she has anything to offer as a teaching assistant or in any kind of relief work. I do not know what she is doing in this school ... ”, entails a value judgment which does not violate the abovementioned provisions of chapter XXV of the Penal Code and it will therefore not be annulled. The latter part of the statement in subparagraph i ., which states the following: “ ... not appropriate that the one who hunts for him works in an elementary school” is a different matter. These words indicated that [Ms X] was guilty of a criminal conduct, which has by no means been proved to be true. [Ms X´s] claim for annulment is therefore accepted, with reference to Article 241, cf. Article 235 of the Penal Code.

As is stated above it has not been proved that the aforementioned statement in subsection i . was correctly cited from [Ms A]. [The applicant] was adequately identified as the author of the article and is therefore liable for its content, according to section 15 (1) of Act no. 57/1956. The statement contained a damaging innuendo against [Ms X] about a criminal act. The statement appeared in a conspicuous manner in a widely-read newspaper and was likely to affect the dignity and professional honour of [Ms X]. On the other hand, the effects that the aforementioned criminal case and the discussion about it must already have had in that respect cannot be overlooked. In light of all this, [Ms X] is awarded ISK 300,000 in non-pecuniary damages.

[The applicant] shall, with reference to Article 241 (2) of the Penal Code, be ordered to cover the costs of the publication of the judgment. [Ms X] has not supported her claim for payment of costs with any data. A reasonable amount for the costs is decided to be ISK 100,000.”

B. Relevant domestic law

A summary of the relevant domestic law may be found in paragraphs 20 to 24 of the Court ’ s judgment in Björk Eiðsdóttir v. Iceland , no. 46443/09 , of 10 July 2012.

COMPLAINT

The applicant complains that the Icelandic Supreme Court´s judgment of 18 February 2010 entailed an interference with her 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 ’ s judgment of 18 February 2010 entail an interference with the applicant ’ s right to freedom of expression as guaranteed by Article 10 of the convention?

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”? In this connection, did the Supreme Court, in its judgment of 18 February 2010, apply standards that were in conformity with the principles embodied in Article 10 of the Convention as interpreted in the Court ’ s case-law?