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CASE OF TUOMELA AND OTHERS v. FINLAND
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
In the case of Tuomela and Others
European Court of Human Rights (Fourth Section), sitting as a Chamber
Nicolas Bratza, President,
David Thór Björgvinsson,
and Lawrence Early,
deliberated in private on 16 March 2010,
the following judgment, which was adopted on that date:
case originated in an application (no. 25711/04) against the Republic
of Finland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Finnish nationals, Mr Juha-Tapio Tuomela
and Mr Esko Tapio Tulusto and a Finnish publishing company, Yhtyneet
Kuvalehdet Oy (“the applicants”), on 19 July 2004.
applicants were represented by Mr Heikki Salo, a lawyer practising in
Helsinki. The Finnish Government (“the Government”) were
represented by their Agent, Mr Arto Kosonen of the Ministry for
applicants alleged, in particular, that their right to freedom of
expression had been violated and that the Penal Code provision on the
basis of which they had been convicted was not clear enough.
4 April 2008 the President of the Fourth Section decided to
communicate the complaints concerning the freedom of expression and
the legality principle to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
I. THE CIRCUMSTANCES OF THE CASE
applicants were born in 1968 and 1946 respectively and live in
Helsinki. The applicant company is based in Helsinki. The first
applicant is a journalist and the second applicant the
editor-in-chief of the third applicant, a publishing company.
7 January 1997 they published in the nationwide magazine Hymy
an article about A., the National Conciliator
(valtakunnansovittelija, riksförlikningsmannen) at the
time, and B., his female friend. The article, which was entitled
“A.'s long-lasting relationship with his female friend and
booze”, concerned an incident that had taken place at A.'s
home on 4 December 1996. A. together with B. had entered late at
night his home where his wife was present. The situation escalated,
the police were called and the incident, which subsequently involved
also A.'s grown-up children, led to A.'s arrest. The article also
concerned A.'s drinking problem and B.'s background and identity: her
name and age were mentioned in the article as well as the fact that
she was the female friend who had been involved in the incident at
A.'s home. Moreover, her workplace, the location of her home and her
family relationships were mentioned in the article. The caption of
the article stated that “Hymy reveals now the identity of
A.'s long standing female friend and tells her background...”.
to the incident on 4 December 1996, criminal charges were brought
against both A. and B. on 18 December 1996. On 16 January 1997 the
Helsinki District Court (käräjäoikeus, tingsrätten)
sentenced A. to a four-month conditional prison sentence for
resisting arrest and for criminal damage (vahingonteko,
skadegörelse), and B. to a fine for assault. On 17 January
1997 the Council of State (valtioneuvosto, statsrådet)
dismissed A. from his post as National Conciliator. On 25 June 1998
the Appeal Court (hovioikeus, hovrätten) upheld the
judgment with respect to B. As regards A., the case was discontinued
as he had died on 14 May 1998. On 15 December 1998 the
Supreme Court (korkein oikeus, högsta domstolen) refused
B. leave to appeal.
the spring of 1997 A. and B. requested that criminal investigations
be conducted against journalists who had written about the incident
on 4 December 1996 and the circumstances surrounding it. On 24
March 1997 they made such a request with respect to the applicants,
claiming that the article published in Hymy had invaded B.'s
privacy as her workplace and name had been revealed. In regard to all
but one of these requests no charges were brought. On 8 September
1998 the public prosecutor decided not to bring charges against the
applicants as, according to him, there was no indication of any
25 October 1998 B. complained to the Prosecutor-General
(valtakunnansyyttäjä, högsta åklagaren)
about the decisions not to prosecute and asked him to reconsider the
cases. On 5 October 1999, after having considered the charges, the
Deputy Prosecutor-General requested the public prosecutor to bring
charges, inter alia, against the first and second applicants.
He reasoned his decision by, inter alia, stating that some of
the facts revealed in the article fell within the scope of private
life and that no derogation could be made in this case as B. was not
a public figure.
15 November 1999 the public prosecutor, by order of the Deputy
Prosecutor-General, brought charges under Chapter 27, section 3 (a),
paragraph 2, of the Penal Code against the first and second
applicants. At the same time charges were brought also against other
journalists and editors-in-chief of other magazines to be examined in
the same proceedings. These journalists and editors-in-chief have
lodged a separate appeal with the Court (see Flinkkilä and
others v. Finland, no. 25576/04, 6 April 2010).
concurred with the charges brought by the public prosecutor. On
4 January and 10 November 2000 she pursued a compensation claim
against all the applicants, which was joined to the criminal charges.
an oral hearing on 8 December 2000, the Espoo District Court rejected
all the charges on 15 December 2000, finding that the information
concerning B.'s private life in the article in question could not as
such be conducive to causing her particular suffering, except for the
information concerning her relationship with A. However, since the
incident of 4 December 1996 B. must have understood that she
could no longer seek protection on this ground. Thus, the first and
second applicants had not been under a duty to assess whether
revealing B.'s identity could have caused her suffering. Furthermore,
it had not been proved that the applicants had intended to invade
B.'s privacy. Accordingly, all the compensation claims against the
applicants were also rejected.
letters dated 10 and 14 January 2001, the public prosecutor and B.
appealed to the Helsinki Appeal Court, reiterating the charges and
the compensation claims. Moreover, on 17 September 2002 B. requested
that the case file be declared secret for at least ten years from the
date of the judgment.
its judgment of 15 May 2003, the Appeal Court first decided to
declare all parts of the case file secret for ten years except for
the applicable legal provisions and the conclusions contained in the
judgment. Additionally, B.'s identity was not to be revealed in the
public parts of the judgment. The court found that the matter was
very sensitive, that it fell within the scope of private life, and
that the secrecy accorded did not violate Articles 6 or 10 of the
Convention. As to the merits of the case the court, without holding
an oral hearing, quashed the District Court's judgment and sentenced
the first and second applicants to pay twenty day-fines, amounting to
1,000 euros (EUR) and EUR 360 respectively, for invasion of private
life. Moreover, they were jointly and severally with the applicant
company ordered to pay B. EUR 5,000 plus interest for non-pecuniary
damage as well as her costs and expenses. The applicants paid in
total EUR 12,403.64 in fines and compensation.
Appeal Court found that the facts mentioned in the article were of a
kind to which the protection of private life typically applied. The
Supreme Court had already found in 2002 that the national television
broadcast on 23 January 1997, in which B.'s name had been
mentioned twice in the context of an interview with A., had invaded
her private life. B. did not hold such a position in society that the
exception in Chapter 27, section 3(a), paragraph 2, of the Penal Code
was applicable. The fact that she was a friend of such a person and
that she had been involved in the incident that subsequently led to
the dismissal of A. from his post as National Conciliator did not
justify revealing her identity. The fact that B.'s identity as A.'s
friend had previously been revealed in the media did not justify the
subsequent invasion of her private life. The Penal Code provision in
question did not require that intent be shown but it was sufficient
that the dissemination of information about the private life of a
person was capable of causing him or her damage or suffering. The
applicants, therefore, had had no right to reveal facts relating to
B.'s private life.
letter dated 9 July 2003 the applicants applied for leave to appeal
to the Supreme Court, claiming, inter alia, that the provision
of the Penal Code in question did not define with sufficient clarity
which acts fell within its scope. No intent had been shown, nor was
the Appeal Court judgment adequately reasoned in this respect.
Moreover, they claimed that, in declaring that the case file should
remain secret, the Appeal Court had not given reasons which would
constitute sufficient grounds for the measure. Finally, the Appeal
Court had not even tried to indicate on what grounds freedom of
expression could be restricted in this case.
20 January 2004 the Supreme Court refused the applicants leave to
II. RELEVANT DOMESTIC LAW AND PRACTICE
relevant domestic legislation and practice are outlined in the
Court's judgment in Flinkkilä and others v. Finland
(cited above, §§ 19-44).
III. RELEVANT INTERNATIONAL MATERIALS
relevant international materials are outlined in the Court's judgment
in Flinkkilä and others v. Finland (cited above, §§
I. ALLEGED VIOLATION OF ARTICLES 7 AND 10 OF THE
applicants complained under Article 7 of the Convention that it had
not been clear from the Penal Code provision applied that their
conduct would be punishable as the provision had not defined the
scope of private life. Moreover, the convictions of A. and B. had
been public information that could not have fallen within the scope
of private life. Even though a conviction for invasion of private
life allegedly required that intent be shown, the Appeal Court had
failed to state how this requirement had been fulfilled.
applicants complained under Article 10 of the Convention that the
restrictions on their right to freedom of expression had not been
prescribed by law and had not been necessary in a democratic society
for the protection of the reputation or rights of others. The
disclosure of B.'s name had not fallen within the protection of
private life as the national courts had not declared any part of her
criminal case file secret. She had been an active participant in the
incident on 4 December 1996 and had subsequently been sentenced to a
fine. The public had a right to know about issues of public interest
and the information in the article had in every respect been correct.
The Appeal Court had not even tried to indicate on what grounds
freedom of expression could have been restricted in the present case.
In any event, the restrictions imposed on the applicants had been
grossly disproportionate, especially in view of their obligation to
pay very considerable damages
7 reads as follows:
“1. No one shall be held guilty of any
criminal offence on account of any act or omission which did not
constitute a criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty be
imposed than the one that was applicable at the time the criminal
offence was committed.
2. This article shall not prejudice the trial
and punishment of any person for any act or omission which, at the
time when it was committed, was criminal according to the general
principles of law recognised by civilised nations.”
10 reads as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
Government contested these arguments.
- The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
1. The parties' submissions
(a) The applicants
applicants maintained that the conviction of the applicants and the
heavy sanctions inflicted on them had amounted to an interference
with their right to freedom of expression which had not been
prescribed by law, had had no legitimate aim and had not been
necessary in a democratic society.
applicants argued that neither the provision in question, Chapter 27,
section 3(a), of the Penal Code, nor the preparatory works had
mentioned that the provision would apply to the publication of an
accused or convicted person's name. On the contrary, the operative
part of a judgment, the legal provisions applied and the name of the
convicted person had always been public information according to
Finnish law. Citing a convicted person's name in a newspaper had not
traditionally been an offence in Finland until 2001 and 2002, when
the Supreme Court had come to a different conclusion. However, it did
not follow from either the provisions or the preparatory works that
publication of a convicted person's name was criminal and it had even
been mentioned in the government bill (HE 184/1999) that the general
nature of Chapter 27, section 3(a),
of the Penal Code might be problematic from the point
of view of the legality principle. In Finnish criminal law the use of
a legal analogy to the detriment of an accused was prohibited. As the
article in question had been published in January 1997 the applicants
could not have been able to foresee what the Appeal Court would
decide more than six years later. Nor could they have anticipated
that the Supreme Court would start assessing these cases differently
applicants pointed out that as B.'s name had appeared in all of the
judgments in her criminal case, this public information could not
have become retrospectively private. Once somebody's name had become
public information, its publication could not be unlawful and could
not violate that person's private life. Moreover, B. had not been a
passive object of publicity but had participated actively in an
incident of public interest. The amount of sanctions inflicted on the
applicants, including the fines, the compensation and the legal
costs, had been such that this alone constituted a violation of
(b) The Government
Government agreed that the conviction of the applicants and the
obligation to pay damages and costs had amounted to an interference
with their right to freedom expression.
to the requirement that measures be “prescribed by law”
and in compliance with Article 10, the Government pointed out that
the impugned measures had had a basis in Finnish law, namely in the
Constitutional Act and, in particular, in Chapter
27, section 3(a), of the Penal Code. B.'s name constituted
information referred to in the latter provision and thus the
provision had fulfilled the clarity requirement. At the relevant time
the provision had been in force for more than 20 years and it had
been interpreted by the Supreme Court, prior to the publication of
the impugned article, in precedent cases KKO
1980 II 99 and KKO
1980 II 123. The
rules on criminal liability could thus be regarded as having been
gradually clarified through judicial interpretation in a manner which
had been consistent with the essence of the offence. The liability
therefore could reasonably have been foreseen.
the Guidelines for Journalists and the practice of the Council for
Mass Media had restricted the disclosure of a person's name in crime
news coverage. Offences were not automatically issues of private
life, a fact that had been confirmed by the Supreme Court's precedent
in the case KKO
2005:136. As B. in
the present case had been sentenced to a fine, this sentence had not
as such reduced the protection of her privacy. This interpretation
was also in line with the Court's case-law (see, for example, Z v.
Finland, 25 February 1997, § 99, Reports of Judgments and
Decisions 1997 I, and P4 Radio Hele Norge ASA v. Norway
(dec.), no. 76682/01, ECHR 2003 VI). The Government thus
argued that the applicants must have been aware of the regulations
concerning the freedom of expression. In any event, they could have
sought legal advice before publishing the article. Accordingly, there
was no violation of Article 7 and the interference was “prescribed
by law” as required by Article 10 § 2 of the Convention.
Government maintained that the legitimate aim had been to protect
B.'s private life, that is, the reputation and rights of others, and
that the interference had also been “necessary in a democratic
society”. Even though B. had been sentenced for an offence and
the proceedings had been mainly public, it did not mean that the
disclosure of B.'s name as such had been lawful. Under Finnish law
the fact that information was public did not automatically mean that
it could be published. Only persons convicted for aggravated offences
and sentenced to imprisonment did not enjoy any protection of
identity or private life.
Government pointed out that at the time of publishing the article in
question B. had not yet been convicted. Moreover, being A.'s female
friend had not as such made her a person in a socially significant
position whose right to private life could be narrowed. B.'s conduct
had not in any way contributed to any discussion of general interest
but had been intended to satisfy public curiosity. Notwithstanding
the incident of 4 December 1996 and B.'s subsequent
sentence, the information published by the applicants had been of
such a nature that it had been covered by the protection of B.'s
private life. The reporting of the events could have been done
without mentioning B. by name. Bearing in mind the margin of
appreciation, the Government argued that the interference in the
present case had been “necessary in a democratic society”.
2. The Court's assessment under Article 10 of the Convention
1. Whether there was an interference
Court agrees with the parties that the applicants' conviction, the
fines imposed on them and the award of damages constituted an
interference with their right to freedom of expression, as guaranteed
by Article 10 § 1 of the Convention.
2. Whether it was prescribed by law and
pursued a legitimate aim
to whether the interference was “prescribed by law”, the
applicants argued that, at the time of the publication of the article
in question, the citing of a convicted person's name in a newspaper
was not an offence in Finland and that they had not therefore been
able to foresee that criminal sanctions could be imposed on them for
having published B.'s name. The Government argued that the scope of
criminal liability had gradually been clarified through judicial
interpretation in a manner which had been consistent with the essence
of the offence and with good journalistic practice and that,
therefore, liability could reasonably have been foreseen.
Court notes that the parties agree that the interference complained
of had a basis in Finnish law, namely Chapter
27, section 3(a), of the Penal Code. The parties'
views, however, diverge as far as the foreseeability of the said
provision is concerned. The Court must thus examine whether the
provision in question fulfils the foreseeability requirement.
Court has already noted that a norm cannot be regarded as a “law”
unless it is formulated with sufficient precision to enable the
citizen to regulate his conduct: he must be able - if need be with
appropriate advice - to foresee, to a degree that is reasonable in
the circumstances, the consequences which a given action may entail.
Those consequences need not be foreseeable with absolute certainty:
experience shows this to be unattainable. Again, whilst certainty is
highly desirable, it may entail excessive rigidity and the law must
be able to keep pace with changing circumstances. Accordingly, many
laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are
questions of practice (see Sunday Times v. the United Kingdom (no.
1), 26 April 1979, § 49, Series A no. 30 and mutatis
mutandis Kokkinakis v. Greece, 25 May 1993, § 40, Series
A no. 260 A).
concerns the provision in question, Chapter
27, section 3(a), of the Penal Code, the Court has
already found in the Eerikäinen case (see Eerikäinen
and Others v. Finland, no. 3514/02, §
58, 10 February 2009) that it did not discern any ambiguity as to its
contents: the spreading of information, an insinuation or an image
depicting the private life of another person which was conducive to
causing suffering qualified as invasion of privacy. Furthermore, the
Court notes that the exception in the second sentence of the
provision concerning persons in a public office or function, in
professional life, in a political activity or in another comparable
activity is equally clearly worded.
it is true that at the time when the article in question was
published, in January 1997, there were only two Supreme Court
decisions concerning the interpretation of the provision in question,
both of which concerned public dissemination of photographs, the
Court finds that the possibility that a sanction would be imposed for
invasion of private life was not unforeseeable. Even though there was
no precise definition of private life in the preparatory works (see
government bill HE 84/1974), they mentioned that the necessity of
mentioning a person's name or other description enabling
identification was always to be the subject of careful consideration.
Had the applicants had doubts about the exact scope of the provision
in question they should have either sought advice about its contents
or refrained from disclosing B.'s identity. Moreover, the applicants,
who were professional journalists, could not claim to be ignorant
about the content of the said provision since the
Guidelines for Journalists and the practice of the Council for Mass
Media, although not binding, provided even more strict
rules than the Penal Code provision in question.
Court concludes therefore that the interference was “prescribed
by law” (see Nikula v. Finland, no. 31611/96, § 34,
ECHR 2002 II; Selistö v. Finland, no. 56767/00,
§ 34, 16 November 2004 and Karhuvaara and Iltalehti v.
Finland, no. 53678/00, § 43, ECHR 2004 X,
Eerikäinen and Others v. Finland, cited above,
§ 58). Moreover, it has not been disputed that the
interference pursued the legitimate aim of protecting the reputation
or rights of others, within the meaning of Article 10 § 2.
3. Whether the interference was necessary
in a democratic society
to the Court's well-established case-law, freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and each
individual's self-fulfilment. Subject to paragraph 2 of Article 10 of
the Convention, it is applicable not only to “information”
or “ideas” that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society”. This freedom is subject to the exceptions set out in
Article 10 § 2, which must, however, be strictly construed. The
need for any restrictions must be established convincingly (see, for
example, Lingens v. Austria, 8 July 1986, § 41,
Series A no. 103, and Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 43, ECHR 1999-VIII).
adjective “necessary”, within the meaning of Article 10 §
2, implies the existence of a “pressing social need”. The
Contracting States have a certain margin of appreciation in assessing
whether such a need exists, but it goes hand in hand with a European
supervision, embracing both the legislation and the decisions
applying it, even those given by an independent court. The Court is
therefore empowered to give the final ruling on whether a
“restriction” is reconcilable with freedom of expression
as protected by Article 10 (see Janowski v. Poland [GC], no.
25716/94, § 30, ECHR 1999-I).
Court's task in exercising its supervision is not to take the place
of national authorities but rather to review under Article 10, in the
light of the case as a whole, the decisions they have taken pursuant
to their power of appreciation (see, among many other authorities,
Fressoz and Roire v. France [GC], no. 29183/95, § 45,
exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole, including
the content of the remarks made by the applicants and the context in
which they made them. In particular, it must determine whether the
interference in issue was “proportionate to the legitimate aims
pursued” and whether the reasons adduced by the national
authorities to justify it were “relevant and sufficient”
(see Sunday Times v. the United Kingdom (no. 1), cited above,
§ 62; Lingens, cited above, § 40; Barfod v.
Denmark, 22 February 1989, § 28, Series A no. 149;
Janowski, cited above, § 30; and News Verlags GmbH &
Co.KG v. Austria, no. 31457/96, § 52, ECHR 2000 I). In
doing so, the Court has to satisfy itself that the national
authorities applied standards which were in conformity with the
principles embodied in Article 10 and, moreover, that they based
themselves on an acceptable assessment of the relevant facts (see
Jersild v. Denmark, 23 September 1994, § 31, Series
A no. 298).
Court further emphasises the essential function the press fulfils in
a democratic society. Although the press must not overstep certain
bounds, particularly as regards the reputation and rights of others
and the need to prevent the disclosure of confidential information,
its duty is nevertheless to impart – in a manner consistent
with its obligations and responsibilities – information and
ideas on all matters of public interest (see Jersild, cited
above, § 31; De Haes and Gijsels v. Belgium,
24 February 1997, § 37, Reports of Judgments and
Decisions 1997 I; and Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Not
only do the media have the task of imparting such information and
ideas: the public also has a right to receive them (see, Sunday Times
v. the United Kingdom (no. 1), cited above, § 65). In
addition, the Court is mindful of the fact that journalistic freedom
also covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, 26 April
1995, § 38, Series A no. 313, and Bladet Tromsø
and Stensaas, loc. cit.).
- The limits of permissible criticism are wider as
regards a politician as such than as regards a private individual.
Unlike the latter, the former inevitably and knowingly lay themselves
open to close scrutiny of their words and deeds by journalists and
the public at large, and they must consequently display a greater
degree of tolerance (see, for example, Lingens v. Austria,
cited above, § 42; Incal v. Turkey, 9 June 1998, § 54,
Reports of Judgments and Decisions 1998 IV; and Castells
v. Spain, 23 April 1992, § 46, Series A no. 236).
the freedom of expression has to be balanced against the protection
of private life guaranteed by Article 8 of the Convention. The
concept of private life covers personal information which individuals
can legitimately expect should not be published without their consent
and includes elements relating to a person's right to their image.
The publication of a photograph thus falls within the scope of
private life (see Von Hannover v. Germany, no.
59320/00, §§ 50-53 and 59, ECHR 2004 VI).
the cases in which the Court has had to balance the protection of
private life against freedom of expression, it has stressed the
contribution made by photos or articles in the press to a debate of
general interest (see Tammer v. Estonia, no. 41205/98, §§
59 et seq., ECHR 2001-I; News Verlags GmbH & Co.
KG v. Austria, cited above, §§ 52 et seq.; and
Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96,
§§ 33 et seq., 26 February 2002). The Court thus
found, in one case, that the use of certain terms in relation to an
individual's private life was not “justified by considerations
of public concern” and that those terms did not “[bear]
on a matter of general importance” (see Tammer, cited
above, § 68) and went on to hold that there had not been a
violation of Article 10. In another case, however, the Court attached
particular importance to the fact that the subject in question was a
news item of “major public concern” and that the
published photographs “did not disclose any details of [the]
private life” of the person in question (see Krone Verlag
GmbH & Co. KG, cited above, § 37) and held that
there had been a violation of Article 10.
factor of relevance is whether freedom of expression was used in the
context of court proceedings. While reporting and commenting on court
proceedings, provided that they do not overstep the bounds set out
above, contributes to their publicity and is thus perfectly consonant
with the requirement under Article 6 § 1 of the Convention
that hearings be public, it is to be noted that the public nature of
court proceedings does not function as a carte blanche
relieving the media of their duty to show due care in communicating
information received in the course of those proceedings (see Council
of Europe Recommendation No. Rec(2003)13 on the provision of
information through the media in relation to criminal proceedings;
outlined in Flinkkilä and others v. Finland, cited above,
§§ 45-46). In this connection, the Court notes that the
Finnish Guidelines for Journalists, as in force at the relevant time,
stated that the publication of a name and other identifying
information in this context was justified only if a significant
public interest was involved (see Flinkkilä and others v.
Finland, cited above, § 41).
Court has balanced in its recent case-law the protection of private
life against the interest of the press to inform the public on a
matter of public concern in the context of court proceedings (see for
example Eerikäinen and Others v. Finland, cited above;
and compare Egeland and Hanseid v. Norway, no.
34438/04, 16 April 2009).
of relevance for the balancing of competing interests which the Court
must carry out is the fact that under Article 6 § 2 of the
Convention a person has a right to be presumed innocent of any
criminal offence until proved guilty (see Bladet Tromsø and
Stensaas v. Norway [GC], cited above, § 65).
to the facts of the present case, the Court notes that the applicants
were convicted on the basis of the remarks made in an article in
their capacity as a journalist or an editor-in-chief.
Court observes at the outset that the article, which was entitled
“A.'s long-lasting relationship with his female friend and
booze”, concerned an incident that had taken place at A.'s
home on 4 December 1996 as a result of which A. had been taken
into police custody. It also concerned A.'s drinking problem and the
background and identity of his female friend B: her name and age were
mentioned in the article as well as the fact that she was the female
friend who had been involved in the incident at A.'s home. Moreover,
her workplace, the location of her home and her family relationships
were mentioned in the article. At the time of the publication of the
article criminal charges had already been brought against both A. and
B. as a consequence of the incident.
Court notes that no allegation has been made of factual
misrepresentation or bad faith on the part of the applicants. Nor is
there any suggestion that details about B. were obtained by
subterfuge or other illicit means (compare Von Hannover v.
Germany, cited above, § 68). The facts set out in the
article in issue were not in dispute even before the domestic courts.
is clear that B. was not a public figure or a politician but an
ordinary person who was subject to criminal proceedings (see Schwabe
v. Austria, 28 August 1992, § 32, Series A no. 242 B).
Her status as an ordinary person enlarges the zone of interaction
which may fall within the scope of private life. The fact that she
was subject to criminal proceedings cannot deprive her of the
protection of Article 8 (see Sciacca v. Italy, no. 50774/99,
§ 28-29, ECHR 2005 I; Eerikäinen and Others v.
Finland, cited above; and Egeland
and Hanseid v. Norway, cited above).
the Court notes that B. was involved in a public disturbance outside
the family home of A., a senior public figure who was married and
with whom she had developed a relationship. Criminal charges were
preferred against both of them. They were later convicted as charged.
The Court cannot but note that B., notwithstanding her status as a
private person, can reasonably be taken to have entered the public
domain. For the Court, the conviction of the applicants was backlit
by these considerations and they cannot be discounted when assessing
the proportionality of the interference with their Article 10 rights.
Court further observes that the information in the article focused on
four issues: the incident of 4 December 1996, the identity and
background of B., the consequences of the incident and on A.'s
drinking problem. Even though several details of B.'s private life
were mentioned, many of which were apparently revealed for the first
time, the information concerning B. was essentially limited to her
conviction and to facts which were inherently related to A.'s story.
In this respect the case differs from the case of Von Hannover
v. Germany (cited above, § 72).
it is to be noted that the disclosing of B.'s identity in the
impugned reporting had a direct bearing on matters of public
interest, namely A.'s conduct and his ability to continue in his post
as a high-level public servant. As B. had taken an active and willing
part in the events of 4 December 1996, leading to A.'s
conviction and dismissal, it is difficult to see how her involvement
in the events was not a matter of public interest. Therefore the
Court considers that there was a continuing element of public
interest involved also in respect of B. In this connection, the Court
notes that the national authorities and the national courts also
reached different conclusions as to whether B. could be considered as
having waived her right to privacy when choosing to become involved
with a public figure and in being a party to the incident, leading
also to her conviction. In the Court's opinion this indicates that,
at least to some degree, the national authorities also considered
that the public interest was engaged in the reporting.
Court further notes that the emphasis in the article in question was
on both A. and B. The events were presented in a colourful manner to
boost the sales of the magazine, a fact that becomes apparent from
the caption to the article (“Hymy reveals now the identity
of A.'s long standing female friend and tells her background...”).
even though the article was written and published before the
convictions of A. and B., the reporting and commenting on their court
proceedings was objective and irreproachable from the point of view
of Article 6 § 2 of the Convention.
the Court notes that the article was published right after the
incident and that it was thus closely linked in time to this event.
the Court has taken into account the severity of the sanctions and
other consequences imposed on the applicants. It notes that the
applicants were convicted under criminal law and observes that both
the first and the second applicants were ordered to pay twenty
day-fines, amounting to EUR 1,000 and EUR 360 respectively. In
addition, all defendants were ordered to pay damages jointly and
severally in a total amount of EUR 5,000. The severity of the
sentence and the amounts of compensation must be regarded as
substantial, given that the maximum compensation afforded to victims
of serious violence was approximately FIM 100,000 (EUR 17,000)
at the time (see Flinkkilä and others v. Finland, cited
above, § 23).
it should be borne in mind that the Supreme Court had already
acknowledged that repeating a violation did not necessarily cause the
same amount of damage and suffering as the initial violation (see
Flinkkilä and others v. Finland, cited above, §§
33-34). The Court notes that B. had already been paid damages in the
amount of EUR 8,000 for the disclosure of her identity in the
television programme (see Flinkkilä and others v. Finland,
cited above, § 36). Similar damages had been ordered to be paid
to her also in respect of other articles published in other magazines
which all stemmed from the same facts (see cases Flinkkilä
and others v. Finland, cited above; Jokitaipale and others v.
Finland, no. 43349/05, 6 April 2010; Soila v. Finland,
no. 6806/06, 6 April 2010; and Iltalehti and Karhuvaara, no.
6372/06, 6 April 2010).
Court considers that such consequences, viewed against the background
of the circumstances resulting in the interference with B.'s right to
respect for her private life, were disproportionate having regard to
the competing interest of freedom of expression.
conclusion, in the Court's opinion, the reasons relied on by the
Appeal Court, although relevant, were not sufficient to show that the
interference complained of was “necessary in a democratic
society”. Moreover, the totality of the sanctions imposed were
disproportionate. Having regard to all the foregoing factors, and the
margin of appreciation afforded to the State in this area, the Court
considers that the domestic courts failed to strike a fair balance
between the competing interests at stake.
has therefore been a violation of Article 10 of the Convention.
3. The Court's assessment under Article 7 of the Convention
view of the finding under Article 10 of the Convention that the
interference was in accordance with the law, the Court finds that
there has been no violation of Article 7 of the Convention in the
II. REMAINDER OF THE APPLICATION
the applicants complained under Article 6 § 1 of the Convention
that the Appeal Court had not reasoned its judgment sufficiently and
that it had violated the principle of equality of arms as the
applicants, contrary to the public prosecutor and B., had not had
access to the Supreme Court's case file in an earlier, related case.
Moreover, they claimed that the Appeal Court's decision that their
case file remain secret had not been sufficiently reasoned and
therefore violated Article 6 § 1 of the Convention.
to the earlier Supreme Court judgment, the Court notes that the
judgment had been relied on by B. and that the applicants had been
able to comment on it. It had been published in an extensive version
on the Internet as an official publication. Since the judgment was
thus publicly available and it seemed to contain all the relevant
information for the applicants to prepare their defence, there is no
indication of any violation in this respect. It follows that this
complaint must be rejected as being manifestly ill-founded within the
meaning of Article 35 §§ 3 and 4 of the Convention.
to the reasoning, the Court notes that Article 6 § 1 obliges
courts to give reasons for their decisions, but cannot be understood
as requiring a detailed answer to every argument (see Van de Hurk
v. the Netherlands, 19 April 1994, § 61, Series A no.
288). In general, the reasoning in the Appeal Court's judgment in the
present case is quite extensive. As far as the reasoning concerns the
restrictions on freedom of expression, the court basically stated
that the facts mentioned in the article were those to which the
protection of private life typically applied, that B.'s position in
society was not such that the exception for public figures applied to
her, and that neither the incident nor the fact that her identity had
been revealed earlier led to any other conclusion. Moreover, the
Penal Code provision in question did not require any intent to harm
to be shown. Therefore the Court finds that the reasoning is
acceptable from the standpoint of the fairness requirements of
- As to the reasons for declaring the case file secret,
the Court notes that the Appeal Court referred to Articles 6 § 1
and 10 of the Convention and concluded that the case contained
sensitive private information and that secrecy was not in
contradiction with these Articles. The Court considers that declaring
the case file secret had no impact either on the applicants' position
as parties to the case or on the actual fairness of the proceedings.
Also in this respect, the Court finds the Appeal Court's reasoning
follows that also these complaints must be rejected as being
manifestly ill-founded within the meaning of Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
applicants claimed EUR 12,403.64 in respect of pecuniary damage, and
the first and second applicant EUR 5,000 each in respect of
Government noted that the pecuniary damages accrued, with exception
of the fines imposed on the applicants, had been paid by the
publishing company. As the publishing company had not asked the
applicants to pay their parts, no actual pecuniary damage had accrued
to them. As to the non-pecuniary damage, the Government considered
that the first and second applicants' claims were excessive as to
quantum and that the award should not exceed EUR 2,000
per applicant and EUR 4,000 in total.
Court finds that there is a causal link between the violation found
and the alleged pecuniary damage. Consequently, there is
justification for making an award to the applicants under that head.
Having regard to all the circumstances, the Court awards the
applicants jointly EUR 12,000 in compensation for pecuniary damage.
Moreover, the Court considers that the first and second applicant
must have sustained non-pecuniary damage. Ruling on an equitable
basis, it awards the first and second applicants EUR 2,000 each
in respect of non-pecuniary damage.
B. Costs and expenses
applicants also claimed EUR 8,986.15 for the costs and expenses
incurred before the domestic courts and EUR 3,000 for those incurred
before the Court.
Government contested these claims. The Government maintained that no
specification related to the costs and expenses, as required by Rule
60 of the Rules of Court, had been submitted as the hours used or the
total cost for each measure performed were not specified. In any
event, the total amount of compensation for costs and expenses for
all applicants should not exceed EUR 3,500 (inclusive of
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being
had to the information in its possession and the above criteria, the
Court considers it reasonable to award the applicants jointly the
global sum of EUR 4,000 (including any value-added tax) under this
C. Default interest
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 7 and 10
of the Convention admissible and the remainder of the application
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there has been no violation of
Article 7 of the Convention;
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
12,000 (twelve thousand euros) to the applicants jointly, plus any
tax that may be chargeable, in respect of pecuniary damage;
2,000 (two thousand euros) to each of the first and second
applicants, plus any tax that may be chargeable, in respect of
4,000 (four thousand euros) to the applicants jointly, plus any tax
that may be chargeable to them, in respect of costs and expenses;
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 6 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza