DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

(Translation)

The majority found a violation of Article 8 of the Convention because, despite the fact that the word “rapist”, accompanied by a picture published on Instagram, had been used to direct invective against the applicant, the domestic courts decided not to convict the author of the post.

The majority made two observations.

Firstly, the term in question referred to an offence strictly defined by criminal law, and corresponded to a factual allegation. Hence, in view of the fact that the criminal proceedings against the applicant for rape had been discontinued by the public prosecutor on 15 November 2012, the use of the word “rapist” to describe him a few days later infringed his right to respect for his private life.

Secondly, this lack of a factual basis meant that invective making specific allegations could not be published with impunity on social media, even where it was undisputed that the person targeted was a public figure who had made controversial remarks about women in particular.

My position is different because, although the timing of the decision to dismiss the rape case on 15 November 2012 and the publication of the impugned Instagram post on 22 November 2012 suggests that the decision to discontinue the proceedings was the event that triggered the post, the applicant ’ s personality and past remarks nevertheless need to be taken into consideration.

The Supreme Court itself, in its reasoning, referred to documents produced in the case which could be construed to mean that the applicant was recommending that women should be subjected to sexual violence. These documents are essential, as their analysis and assessment as incriminating evidence fall within the State ’ s margin of appreciation.

In those statements, which the domestic courts assessed at their own discretion, the applicant expressed his views on a subject specifically and directly linked to the invective directed against him. He put himself in a position in which the impugned term of “rapist” could be used to describe him, no longer as an allegation of a specific fact but as a value judgment. Accordingly, he could not claim the protection of Article 8 to the same degree as an accused person acquitted of rape who had made no remarks or controversial statements concerning women and sexual assault.

The applicant ’ s public, controversial and provocative statements shifted the boundary between an allegation of fact and a value judgment. Thus, the domestic courts were entitled to consider that the impugned comments did not have a direct, clear and essential link to the decision taken a few days previously to discontinue the case, but referred more generally to the views aired by the applicant in the past.

Consequently, I am unable to find that there has been a violation of Article 8 of the Convention.

[1] At least irrelevant from the point of view of Article 8 of the Convention. It should be noted that the applicant did not complain of a violation of his right to be presumed innocent, guaranteed by Article 6 § 2.