Information Note on the Court’s case-law 212

November 2017

Egill Einarsson v. Iceland - 24703/15

Judgment 7.11.2017 [Section II]

Article 8

Positive obligations

Article 8-1

Respect for private life

Dismissal of defamation proceedings brought by a public figure accused of being a “rapist”: violation

Facts – The applicant was a well-known figure in Iceland who had published articles, blogs and books and appeared in films, on television and other media. Following rape and sexual assault accusations against the applicant by two women a police investigation was opened, but both cases were later discontinued by the public prosecutor for lack of evidence. Shortly after th e second case was dropped the applicant gave an interview about the accusations to a magazine. On the day the interview was published, a third party (X) published an altered version of the applicant’s magazine picture with the caption “Fuck you rapist bast ard” on his account on Instagram, an online picture-sharing application. The applicant brought defamation proceedings against X but the case was dismissed at first instance after the Supreme Court found that the Instagram caption constituted invective and was therefore a value judgment, not a factual statement that the applicant was in fact guilty of rape.

In the Convention proceedings, the applicant alleged a violation of his right to respect for his private life in breach of Article 8.

Law – Article 8: Th e Court had to determine whether a fair balance had been struck between the applicant’s right to the protection of his private life under Article 8 of the Convention and X’s right to freedom of expression as guaranteed by Article 10.

The domestic courts ha d found that the applicant was a well-known figure whose views, including his attitudes towards women and their sexual freedom, had attracted attention and controversy. The complaints against him of sexual violence had led to public discussions in which he had participated. In these circumstances the Court accepted that the limits to acceptable criticism had to be wider in his case than in the case of an individual who was not well-known.

The Court also agreed with the domestic courts that, in the light of the fact that the applicant was well-known and the impugned publication was a part of a debate concerning accusations of a serious criminal act, the caption concerned an issue of general interest.

The crux of the matter before the domestic courts was whether or not the caption “Fuck you rapist bastard” was a statement of fact or a value judgment. The Supreme Court had taken took the view that this was a case of invective in a ruthless publ ic debate which the applicant had instigated, and was therefore a value judgment. The Court disagreed with that assessment. The term “rapist” was objective and factual in nature, referring directly to a person who has committed the act of rape, which was a criminal offence under Icelandic law. The veracity of an allegation of rape could therefore be proven. Although the Court did not exclude the possibility that an objective statement of fact, such as the one impugned in the applicant’s case, could contextu ally be classified as a value judgment the contextual elements justifying such a conclusion had to be convincing.

The factual context in which the caption alleging the applicant was a “rapist” was published was the criminal proceedings in which the applica nt had been accused of the very same criminal act to which the caption referred. Those proceedings had been discontinued a short time before. The Supreme Court had, however, failed to take adequate account of that important chronological link. Given the di scontinuance of the criminal proceedings against the applicant just prior to the publication of the applicant’s newspaper interview, the Supreme Court had failed to explain sufficiently the factual basis that could have justified assessing the use of the t erm “rapist” as a value judgment.

Article 8 of the Convention had to be interpreted to mean that persons, even disputed public figures that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly a ccused of violent criminal acts without such statements being supported by facts.

In sum, the domestic courts had failed to strike a fair balance between the applicant’s right to respect for private life under Article 8 of the Convention and X’s right to f reedom of expression under Article 10.

Conclusion : violation (five votes to two).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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