31 March 2011

FOURTH SECTION

Application no. 66456/09 by Juha Arvo Mikael RISTAMÄ KI and Ari Jukka KORVOLA against Finland lodged on 15 December 2009

STATEMENT OF FACTS

THE FACTS

The applica nts, Mr Juha Arvo Mikael Ristamä ki and Mr Ari Jukka Korvola , are Finnish nationals who were born in 1969 and 1953 and live in Espoo and Helsinki respectively.

A. The circumstances of the case

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

The first applicant is an editor and the second applicant is his immediate superior. Both applicants are employed by a Finnish broadcasting company.

On 27 February 2006 the company broadcast on a national TV channel a current affairs programme criticising the lack of co-operation between the authorities concerning the investigation of economic crime. It was revealed that the tax authority had refused the request of the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ) to conduct a tax inspection into the functioning of two companies running a certain sports centre. Reference was made in that connection to K.U., a well-known Finnish businessman who, at the time, was standing trial for economic offences. The programme was broadcast anew on the following day.

On 10 December 2007 the public prosecutor preferred charges against both applicants. He maintained that the first applicant, by editing the programme, and the second applicant, by allowing its broadcast, had intentionally and in concert made false insinuations about K.U. such that their conduct had been conducive to causing the latter suffering, subjecting him to contempt and causing him damage. A similar accusation was made against the broadcasting company ’ s editor-in-chief who had, along with the second applicant, allowed the second broadcast of the programme. As the false insinuations had been disseminated through mass media to a large public, and as this had caused K.U. great suffering, the defendants should be convicted of aggravated defamation.

K.U., for his part, claimed compensation for mental anguish and legal costs in the same proceedings.

The applicants contested the charge and the civil claim. They argued, inter alia , that all information imparted had been correct. There had been no false insinuations about K.U., nor any criminal intent on the behalf of the applicants. The programme had dealt with an issue of general importance, that is, problems of co-operation between the police and the tax authority.

On 9 May 2008 the Helsinki District Court ( käräjäoikeus, tingsrätten ) issued its judgment. In its reasons the court found it established that the first applicant had edited the programme, broadcast on 27 and 28 February 2006. The programme had reached some 750,000 viewers. It had been announced as a report on the termination of tax inspections into the affairs of a person in a high position and his friend.

The court went on to note that at the beginning of the programme footage was shown of the criminal trial concerning K.U. ’ s alleged economic offences shot on the same day, that is, 27 February 2006. It was followed by a diagram illustrated by K.U. ’ s photograph and indicating: “National Bureau of Investigation → [K.U.] → [K.U. ’ s] business associate → Sports centre.” While these images were shown on the screen the narration ran as follows:

“The Helsinki District Court continued today the examination of an extensive trial concerning economic crime. One of the accused was the businessman [K.U.], with previous convictions for economic offences. He is being charged with having concealed from his creditors millions of his assets. There are nine other defendants who have allegedly hidden [K.U. ’ s] assets around the world. The National Bureau of Investigation worked for years on this money laundering case, which is probably the largest of its kind in Finland . Now it has come to light that spanners were thrown into the works of the [K.U.] investigation from unexpected quarters. In 2001 one of [K.U. ’ s] close associates decided to invest in the sports business. He bought himself into a sports centre in Helsinki and became its managing director. The National Bureau of Investigation became interested in whose money was used in the purchase. [K.U. ’ s] associates ’ own assets would not have been sufficient to acquire the sports centre. The National Bureau of Investigation asked the tax authority to conduct a tax inspection into the companies running the centre. The police wanted to know whether it had been purchased using [K.U. ’ s] money.”

The court went on to summarise the programme noting that:

“After this a criminal inspector explains that in November 2001 the National Bureau of Investigation lodged a written request with the tax administration for tax inspection concerning two companies in the sports business and that, according to the information acquired, such inspections were not carried out. It was then noted in the programme that [this kind of omission] was very rare in the co-operation between the police and the tax authority and that this was the only branch in the [K.U.] investigation, where the tax authority refused to co-operate with the police. It is also mentioned in the programme that in 2001 the Uusimaa Tax Office ( verovirasto, skatteverk ) had, at the request of the police, carried out inspections into the tax affairs of the director general for the National Board of Patents and Registration ( Pa tentti- ja rekisterihallitus, P atent - och registerstyrelsen ) and that in these investigations the tax inspectors had [come across] the afore-mentioned sports centre. It was deemed that a good friend and a business associate to the director general had invested in the sports centre. In May 2001 the head of the tax inspection unit had put the brakes on the investigation into the director general ’ s affairs and called off the inspections of the companies running the sports centre.

It was also mentioned in the programme that after the sports centre came into the possession of [K.U. ’ s] friend, the National Bureau of Investigation had asked the tax authority to continue the inspections into the companies running the sports centre but nothing happened. During the investigations the director general of the National Board of Patents and Registration and the tax commissioners attempted to hinder the tax inspectors ’ work.

Finally, it is mentioned in the programme that if the investigation concerning the sports centre had been continued because of [K.U.], that might have again raised delicate issues concerning the friend of the director general of the National Board of Patents and Registration and the commission [he] was paid in connection with the change of office quarters of the latter. But since nothing was done, nothing was found out. In this context, the diagram with [K.U. ’ s] photograph was again shown.”

The District Court then found it established that the second applicant had been the first applicant ’ s immediate superior. He had read the script and authorised its broadcast. The court noted that prior to the rebroadcast of the programme K.U. had contacted the first applicant and insisted that the part concerning him be removed. The court found it established that the second applicant and the editor-in-chief had discussed K.U. ’ s demand and decided not to accede to it. The court further found it established that the second applicant had watched the programme before its second broadcast. He had then decided that at the end of the rebroadcast the announcer would inform the viewers that, in regard to the sports centre coverage, K.U. ’ s business associate submitted that he had received the money for the purchase from an insurance company and not from K.U.

The court also referred to a later broadcast on 6 March 2006 of the same series of current affairs programmes, which was a follow-up to the above-mentioned programme. In that programme it was mentioned, inter alia , that K.U. ’ s business associate, who had been a shareholder in the company which purchased the sports centre in 2000, had presented the contracts concerning the purchase. It transpired from those contracts that the sports centre, and its debts, had been purchased with a loan granted by an insurance company. According to the business associate, K.U. ’ s money had not been invested in the sports centre.

In its assessment the District Court observed that there was nothing to suggest that the information contained in the programme broadcast on 27 and 28 February 2006 had been false as such. It went on to state:

“The District Court finds that the script of the programme and the use of the footage from the trial concerning [K.U. ’ s] alleged economic offences and the diagram concerning [K.U.] taken together create an image that [K.U.] had made himself guilty of a crime by investing his assets in the sports centre business. It has not been asserted directly that [K.U.] had committed an offence. The programme was structured around [K.U.] On the above grounds the District Court finds that a false insinuation was made concerning [K.U.] in the programme broadcast on 27 and 28 February 2006, giving the impression that [he] had committed an offence by using assets concealed from his debtors for the purchase of the sports centre.

The addition made to the rebroadcast on 28 February 2006 does not exclude the false insinuation that [K.U. ’ s] money has ended up in sports centre business.

Defamation is only punishable where there is criminal intent. The defendants have not shown that they had strong grounds or probable reasons to believe that the false insinuation was accurate. The addition made to the rebroadcast, and the programme of 6 March 2006, indicate that [K.U. ’ s] money had not been used to finance the sports centre. It follows that further information concerning the insinuation had been available and it could have been verified. The defendants are responsible for the programme and the false insinuation contained therein. They must have considered it very likely that the programme contained a false insinuation aimed at [K.U.]. That insinuation concerns a serious act and sufficiently strong factual grounds are to be expected.

This kind of false insinuation implying that [K.U.] has committed an offence has been conducive to causing him suffering and damage and to subjecting him to contempt.

The exercise of freedom of expression, or the fact that [K.U.] is a public figure, do not justify the false insinuation given by the defendants.

The defendants have stressed that the programme concerned co-operation between the authorities. The District Court considers that presenting [that issue] would not have required connecting [K.U.] to the matter.

Whether the broadcast was deliberately or by chance scheduled on the same day as [K.U. ’ s] criminal trial is not relevant in this case.

The District Court finds that the [first and second] defendants have, in the above described manner, intentionally disparaged [K.U. ’ s] honour. ...”

The District Court lastly found that, having regard to the nature and content of the false insinuation and the fact that K.U. had, at the time, been charged with a similar economic offence, the defendants were not guilty of aggravated defamation. It convicted all defendants of [regular] defamation pursuant to Chapter 24 Article 9, paragraph 1, point 1, of the Penal Code. The applicants were sentenced to 30 day-fines each, amounting to a total of 810 euros (EUR) and EUR 1,230 respectively. They were also ordered to pay to K.U., jointly and severally with the third defendant, EUR 1,800 for suffering and EUR 1,500 in legal costs.

The District Court was composed of one professional judge and three lay judges. One of the lay judges was in favour of an acquittal.

The applicants and the third defendant appealed against the judgment to the Helsinki Court of Appeal ( hovioikeus, hovrätten ) maintaining, inter alia , that the District Court had given too little weight to the fact that the information given in the programme had been accurate. The programme had not focused on K.U. but on the problems of co-operation between the authorities, which was an issue of major general importance. The defendants also contested the lower court ’ s view that it would have been possible to report on the issue without making any connection to K.U. At the time of the broadcasting, K.U. and a number of other persons had been charged with serious economic offences. The problems of co-operation between the authorities reported in the programme had occurred in the investigation of that very case. The defendants further contested the lower court ’ s finding of criminal intent and that K.U. had sustained damage.

On 30 December 2008 the Court of Appeal dismissed the appeal. It upheld the lower court ’ s judgment without giving any further reasons of its own.

On 16 December 2009 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the applicants leave to appeal.

B. Relevant domestic law

The Finnish Constitution ( Suomen perustuslaki, Finlands grundlag , Act no. 731/1999) provides in relevant parts:

“Section 10 – The right to privacy

Everyone ’ s private life, honour and the sanctity of the home are guaranteed. ...

...

Section 12 – Freedom of expression and right of access to information

Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”

Chapter 24, Article 9, paragraphs 1 and 2 of the Penal Code ( rikoslaki, strafflagen ; Act no. 531/2000) provide:

“A person who

1) gives false information or makes a false insinuation about another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or

2) disparages another person in a manner other than referred to in point 1

shall be convicted of defamation and sentenced to a fine or imprisonment for a maximum period of six months.

Criticism that is directed at a person ’ s activities in politics, business, public office, public position, science, art or in comparable public activity, and which does not clearly overstep the limits of what can be considered acceptable, does not constitute defamation as set out in point 2 of paragraph 1.”

Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen ; Act no. 412/1974, as amended by Act no. 509/2004) provides that a person may be awarded compensation for suffering if, inter alia , his or her liberty, peace, honour, or private life has been violated through a punishable act. In assessing the level of that suffering the nature of the violation, the status of the victim, the relationship between the offender and the victim as well as the possible public exposure of the violation are to be taken into account.

COMPLAINT

The applicants complain under Article 10 of the Convention that the restriction imposed by the domestic courts on the exercise of their freedom of expression was not necessary in a democratic society.

QUESTION TO THE PARTIES

Has there been an interference with the applicants ’ right to freedom of expression, in particular their right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?