JOINT DISSENTING OPINION OF JUDGES PALM, FUHRMANN and BAKA

We disagree with the majority opinion that there has been a violation of Article 10 of the Convention on the facts of this case.

It is clear from the structure of Article 10 and from the Court’s case-law that the exercise of freedom of expression “carries with it duties and responsibilities” and that restrictions on freedom of the press may be justified where it is necessary in a democratic society for the protection of the reputation of others. As the Court has stated in its De Haes and Gijsels v. Belgium judgment of 24 February 1997, “Although [the press] must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest …” ( Reports of Judgments and Decisions 1997-I, pp. 233-34, § 37).

It is the right to the protection of reputation aspect of the present case which has been given insufficient attention in the Court’s judgment and which motivates the present dissent. The crucial watchdog role of the press in a democratic society has been positively asserted and defended by this Court in the course of a large corpus of cases concerning freedom of expression which have stressed not only the right of the press to impart information but also the right of the public to receive it. In so doing the Court has played an important role in laying the foundations for the principles which govern a free press within the Convention community and beyond. However, for the first time the Court is confronted with the question of how to reconcile the role of newspapers to cover a story which is undoubtedly in the public interest with the right to reputation of a group of identifiable private individuals at the centre of the story. In our view the fact that a strong public interest is involved should not have the consequence of exonerating newspapers from either the basic ethics of their trade or the laws of defamation. As the Grand Chamber of the Court stated in Fressoz and Roire v. France ([GC], no. 29183/95, ECHR 1999-I) – the first judgment of the new Court – Article 10 “protects journalists’ rights to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism” (§ 54).

It is also central to our position that the present case does not involve a situation where a government has sought, by way of prior restraint, to suppress a newspaper story which was embarrassing to it or indeed a complaint of a general nature not involving specific individuals as in the Thorgeir Thorgeirsson v. Iceland case (judgment of 25 June 1992, Series A no. 239) despite the Court’s veiled attempt to suggest otherwise (see paragraph 67 of the judgment). The present case is brought by a group of aggrieved private individuals as part of a predominantly civil process. Of course, as the Court has often held – most recently in Janowski v. Poland ([GC], no. 25716/94, § 33, ECHR 1999-I) – the limits of acceptable criticism are wider as regards politicians or public figures than they are as regards private persons. However, it cannot be doubted that the seal hunters involved in these proceedings are private persons par excellence . The fact that they are involved in as unpopular an activity as seal hunting does not remove their status as private individuals.

In the present case a Norwegian District Court, after a careful examination of the evidence, concluded that the seal hunters on board the Harmoni , who were clearly identifiable from the impugned press articles published by Bladet Tromso , had been defamed. The court had held a hearing which lasted three days and heard relevant witnesses. It subsequently delivered a well-reasoned judgment applying Norwegian law of defamation to the facts of the case (see paragraph 35 of the judgment). The finding of defamation was based on the allegations that the crew members had killed female harp seals which, at the time, amounted to a criminal offence, that Mr Lindberg had been assaulted and that a seal had been skinned alive (ibid). It should be recalled that, prior to these proceedings, Mr Lindberg had been held liable in defamation with regard to these allegations, in a suit brought by the crew members, by the Sarpsborg City Court and that the Swedish Supreme Court, in proceedings brought by Mr Lindberg to oppose execution of the judgment abroad, has found in a decision of 16 December 1998 that the Norwegian judgment did not entail a breach of Article 10 of the Convention (see paragraph 33 of the judgment). In addition the accusations had also been held to be unfounded by a Commission of Inquiry which had been set up to investigate the issues (see paragraph 31).

In our view the findings of the District Court cannot be faulted. It has been held by the European Court in numerous cases that it falls in principle to the national courts to interpret and apply national law and that the European Court’s role is limited to examining whether the decisions of the national authorities were arbitrary and whether they applied standards which were in conformity with the principles embodied in Article 10 and based themselves on an acceptable assessment of the relevant facts (see, for instance, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 24, § 31). In the present case it cannot be said in any respect that the decision of the District Court failed to meet this test, was arbitrary or even unreasonable or that the reasons given were not “sufficient” for the purposes of Article 10 § 2. It is not disputed by the parties that the article implicated identifiable members of the crew even including some of those who had not participated in the voyage. Moreover, the findings of the District Court are supported by the conclusions of an independent Commission of Inquiry which had carried out an extensive investigation into the allegations prior to the proceedings and found them to be unfounded as well as the findings of the Sarpsborg City Court in the Lindberg proceedings (see paragraphs 31-33 of the judgment). It thus must be taken as accepted that the seal hunters were defamed in the articles published by Bladet Tromsø . We do not accept the Court’s reasoning that the defamation was of a lesser nature because no specific crew member was named in the articles (see paragraph 67 of the judgment). On the contrary, the weight of the remarks was heavier precisely because they implicated the entire crew of the Harmoni without exception and irrespective of whether they were actually on board the ship at the relevant time.

Nor can the Norwegian law of defamation or the decision of the District Court be open to criticism from the standpoint of freedom of the press on the grounds that they were over-protective of the reputations of private individuals or failed to attach sufficient weight to the public interest . The holding that the accusations were null and void amounts merely to a finding that the applicant had not been able to establish the truth of the statements. It does not carry any criminal stigma or amount to a penalty as the words might suggest. The requirement to prove the truth of the allegations as a defence to a defamation action is an elementary feature of defamation proceedings in most legal systems and as such cannot be criticised. Indeed, in one case the Court found that the unavailability of the defence of exceptio veritatis to a defendant gave rise to a violation of Article 10 of the Convention (see the Castells v. Spain judgment of 23 April 1992, Series A no. 236, pp. 22-24, §§ 40-50).

Moreover, under Norwegian law the defamation must also be unlawful. This development in Norwegian case-law – described in the judgment of the District Court as “the linchpin of Article 100 of the Norwegian Constitution and … essential in a democratic society” (see paragraph 35 of the judgment) – gives the court the possibility to weigh in the balance the respective interests and to find that the public interests involved in publication outweigh the private one in a given case. Norwegian law has thus developed in a manner which has taken into account the principles of Strasbourg case-law. Indeed the District Court followed this approach in the present case but found against the applicants essentially on the grounds that the newspaper focused its attention on sensational headlines and that “sufficient attention was not paid to the protection of other persons in this disclosure” and that the newspaper was well aware that the report had been exempted from public disclosure precisely because of the accusations of wrongdoing. Neither of these factual points can be seriously contested. The Aftenposten judgment shows that the test of “unlawfulness” is an important guarantee of press freedom under Norwegian law since it was exactly on this basis that the court found for the defendant newspaper, contrasting that paper’s balanced coverage with that of Bladet Tromsø in the present case.

Against this background is it for the European Court to say that the District Court’s assessment on this point was wrong? Even if the Strasbourg Court should substitute its judgment in this way for that of the national court, on what grounds could this balancing of the interests be called into question? We observe that the Court has previously stated that it is in the first place for the national authorities to determine the extent to which the individual’s interest in full protection of his or her reputation should yield to the interests of the community (as regards the investigation of the affairs of large public companies) – a fortiori where the reputation of private persons is at stake (see the Fayed v. the United Kingdom judgment of 21 September 1994, Series A no. 294-B, p. 55, § 81). Is this not the essence of the margin of appreciation in a case like the present one?

The crux of the Court’s reasoning involves essentially a new test that newspapers can be dispensed from verifying the facts of a story depending on (1) the nature and degree of the defamation and (2) whether it was reasonable in the circumstances to rely on the details of the Lindberg report (see paragraphs 66-73 of the judgment). On both points we find the Court’s reasoning to be flawed.

The majority has tried hard to minimise the extent of the defamation in the present case but eventually considers that “some of the accusations were relatively serious” (see paragraph 67). However it reaches the rather vague conclusion that “the criticism was not an attack against all the crew members or any specific crew member”. This is obviously unsupported by the facts and tends to suggest that the complaint of defamation was lacking in any real substance. We must ask whether it is at all appropriate for the Court to seek to reassess the extent of the harm caused by the defamatory remarks and in effect to retry the issues on this point. Surely the Court should accept that this is a matter best left to the judgment of the national courts which heard at first hand and carefully assessed the evidence in the light of standards which are in conformity with Article 10? This approach of the majority illustrates the main fault-line running through the judgment, namely that the Court does not give sufficient weight to the reputation of the seal hunters. The effort to balance the respective public and private interests is thus defective from the start.

The reasoning is equally unconvincing in its treatment of the question concerning the “reasonableness” of the paper’s reliance on the Lindberg report. How could it have been “reasonable” to rely on this report when the newspaper was fully aware that the Ministry had ordered that the report not be made public immediately because it had contained possibly libellous comments concerning private individuals? It was thus temporarily not in the public domain and rightly so. The question of whether the Ministry believed or disbelieved Lindberg’s claims (see paragraph 71 of the judgment) is simply not relevant to this issue. The Court’s finding on this point also ignores the calling into question of the good faith of the paper’s journalist (Mr Raste) by the District Court. How then can reliance on the details of the Lindberg report be judged to be reasonable when a national court has found in effect that the paper has not only indulged in sensationalism but must have been aware that some of the details were entirely false?

We accept that if the case concerned the publication of an official report which had been made public by the competent authorities, a newspaper would in principle be entitled to publish it under Article 10 of the Convention without carrying out any further investigation as to the accuracy or precision of the details of the report even if it was damaging to the reputation of private individuals. All that could be expected of a newspaper in such a situation would be to check that the published text corresponded to the official published text.

But the present case does not concern an official public report. On the contrary the report had not immediately been made public by the Ministry precisely because it contained allegations of wrongdoing against the crew members and it was considered only fair and proper to afford them an opportunity to defend themselves and to verify the information (see paragraph 11 of the judgment). The subsequent series of defamation proceedings and the Commission of Inquiry report vindicated such a cautious approach. Moreover it is clear that the newspaper was aware of this decision but decided nevertheless to go ahead and publish (see paragraph 35 of the judgment). It was also aware that Mr Lindberg had previously worked as a freelance journalist on seal hunting issues, having published several of his articles, and did not have the traditional profile of a Ministry inspector.

In our view, judged against this background, the newspaper knew that it was taking the risk of exposing itself to legal action by publishing the articles without taking any steps whatsoever to check the veracity of the claims being made. The action taken by the crew members cannot have come as a surprise, since the newspaper must have known that it should have exercised caution before printing accusations that private persons had committed criminal offences or other forms of wrongdoing. The fact that the report was drawn up by a person who was officially appointed by the Ministry, or that the report was potentially a public report, does not assist the applicants any more than it could justify the publication of secret material harmful to the national interest obtained in the same manner. The key fact is that the contents of the report were not in the public domain or accessible to the public (see paragraph 11 of the judgment) and not (as the majority consider) whether the applicant was contravening the law on confidentiality. Bladet Tromsø knew this and the reasons for it.

We are not persuaded either by the argument that the newspaper could not realistically have checked the claims and that it was entitled to rely on the details of the report since they concerned matters – e.g. the killing of female harp seals during the Harmoni ’s sea voyage – which by their nature were unverifiable. We observe, in passing, that newspapers can generally be expected to carry out checks on controversial stories before rushing into print. But what could Bladet Tromsø have been expected to do? We accept, in keeping with the Court’s previous holdings (see, for example, the Fayed judgment cited above, p. 55, § 81), that it would have been unreasonable to expect the paper to suspend publication until it had carried out a serious investigation of the matter. Equally it did not have to prove the story to be true before printing. The story was obviously too pressing to bury in time-consuming investigatory procedures. But as the District Court found, the newspaper did nothing at all to check the story, even when one of its journalists must have known from his own experience that the allegation concerning the flaying of seals alive must have been “a tall story” (see paragraph 35 of the judgment). In other words, the paper published the story without caring whether the allegations were true or false, relying entirely on the “official” nature of the report as their cover. They could have been expected, at the very least, to ask the crew members for their version of the events and their reaction to the various accusations made by Mr Lindberg and given them an opportunity to answer the accusations at the same time as the impugned articles were printed. After all, they were also witnesses to what had happened on board the Harmoni and were the persons directly implicated in the accusations. The paper would then have discovered – if nothing else – that some of the crew members could not have been concerned by the claims since they had stayed on dry land. That the paper carried a story concerning the reactions of a crew member subsequent to the publication of the entire report (see paragraphs 12-15 of the judgment) when the damage to reputation had already occurred can hardly be regarded as sufficient.

Bladet Tromsø took a risk in publishing the Lindberg report. They had the real possibility to cover this important story in a manner which would have enabled Lindberg’s claims to have been aired in a general way without implicating the crew of the Harmoni . In fact, other publications, notably Aftenposten , had been able to cover the story properly but in a manner which was more respectful of the reputations of the seal hunters (see paragraph 37 of the judgment). Of course, in a small fishing community even a general report might have enabled the crew members to have been identified by some. However, this cannot excuse the absence of any concern to attempt to protect the reputation of the seal hunters. Moreover, it should not be forgotten that the paper had a 9,000-strong readership. If this is deemed to miss the point, in that the only concern of the paper was to carry the precise details of the Lindberg report, then the reputation of the hunters is legitimately protected by the law of defamation and the paper, having assumed the risk, is not well placed to complain of the inevitable outcome.

The present judgment’s conclusion, that the newspaper was exonerated from the verification of basic factual information by virtue of the degree of defamation involved and the supposedly “official” nature of the Lindberg report, appears to suggest an exceptionally low threshold for the protection of the right to reputation of others where there is an important public interest involved and no public figures. Such an elevation of the public interest in the freedom of the press at the expense of the private individuals caught up in the seal hunting story in this case pays insufficient attention to the national laws on defamation and the balanced freedom of the press ‑ conscious judgments of the domestic courts. It is abundantly clear from the decision of the District Court that the factual basis of the story was inaccurate and that the ethics of journalism were not respected as they ought to have been. Our Court should not, against such a background, reach a different conclusion on these points.

The present judgment thus departs significantly from the above-mentioned cautious wording in the Court’s Fressos and Roire judgment elucidating the scope of the journalist’s freedom to disclose information on issues of general interest. In so doing the judgment sends the wrong signal to the press in Europe. Few stories can be so important in a democratic society or deserving of protection under Article 10 of the Convention, that the basic ethics of journalism – which require, inter alia , journalists to check their facts before going to press with a story in circumstances such as the present – can be sacrificed for the commercial gratification of an immediate scoop. We are not persuaded that the Court’s approach in this case which has exonerated the applicant newspaper from this elementary requirement will actually advance the cause of press freedom since it undermines respect for the ethical principles which the media voluntarily adhere to. Article 10 may protect the right for the press to exaggerate and provoke but not to trample over the reputation of private individuals.