EUROPEAN COMMISSION OF HUMAN RIGHTS

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 21980/93

by BLADET TROMSØ A/S

and Pål STENSÅS

against Norway

The European Commission of Human Rights sitting in private on 26 May 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS  

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

 Having regard to the application introduced on 10 December 1992 by BLADET TROMSØ A/S and Pål STENSÅS against Norway and registered on 7 June 1993 under file No. 21980/93;

Having regard to the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

Having regard to the observations submitted by the respondent Government on 22 April 1995 and the observations in reply submitted by the applicants on 31 July 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are a local newspaper and its former editor. The newspaper is published in Tromsø, situated in the northern part of Norway, and has a circulation of about 9,000 copies. Its former editor is a Norwegian citizen, born in 1952 and a resident of Nesbrua, Norway. Before the Commission the applicants are represented by Mr Kevin Boyle of the University of Essex, United Kingdom, and Mr Steingrim Wolland, a lawyer practising in Oslo.

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

A. Particular circumstances of the case

On 3 March 1988 Mr A applied to the Ministry of Fisheries to be appointed sealing inspector on board the vessel M/S Harmoni, a seal-hunting vessel, during the 1988 seal-hunting season. On 9 March 1988 he was appointed sealing inspector by the Ministry. He served as such on board M/S Harmoni from 12 March to 11 April 1988.

On 12 April 1988, the day after the vessel returned to port, the first applicant printed an interview with Mr A in which the latter stated inter alia that the seal hunters had violated the seal-hunting regulations. The headline of the article was as follows:

(Translation)

"Research reveals crude hunting methods in the West Ice. Deplorable violations of the regulations."

The article prompted an immediate reply from the seal-hunters but  did not otherwise cause a debate in the media.

In accordance with the Instructions for Sealing Inspectors Mr A wrote a report concerning the trip on board M/S Harmoni. The inspection report was ready on 30 June 1988. The Ministry of Fisheries received the report from Mr A on 11 July 1988. The report mentioned a series of violations of the seal-hunting regulations, and levelled allegations against five seal-hunters who were mentioned by name. Due to the allegations against individuals, the Ministry of Fisheries decided to exempt the report from public disclosure pursuant to section 6, item 5 of the Act of 19 June 1970 relating to public access to documents in the public administration, according to which notifications, reports, and other documents concerning statutory offences may be exempted from public disclosure.

Although the report was exempted from public disclosure Mr A submitted it to the first applicant. On 15 July 1988 the first applicant published an article based on Mr A's report. The article contained allegations about illegal methods used to kill seals and other breaches of the seal-hunting regulations. One of the allegations was spread over the entire front page as part of the headlines: "Shock Report" and "Seals skinned alive". The text of the front page read as follows:

 (Translation)

 

"The sealing inspector ... is criticising Norwegian seal-hunters in a shock report on the last sealing season. (He) refers to illegal methods of killing, drunk crew members and a commencement of seal-hunting before the hunting season has opened. Not least the report includes an account of  his being beaten up by furious seal-hunters who also threatened to hit him on the head with the 'hakapik' if he did not keep quiet. 'The report is of such a character that we have withdrawn it from the public', said a spokesman for the Ministry of Fisheries."

On 19 and 20 July 1988 the first applicant published the entire report made by Mr A notwithstanding the fact that the report was still being withheld from the public by the Ministry. The publication of the report received extensive media coverage.

In February 1989 a film concerning Mr A's experiences in respect of seal-hunting was shown on television in the United Kingdom, Denmark and Sweden. Extracts were shown on Norwegian television. The film gave the impression that reprehensible seal-hunting methods had been used and that there had been extensive violations of the seal-hunting regulations. Because of the allegations of breaches of the seal-hunting regulations in Mr A's inspection report and the film, the Government appointed a commission of inquiry. It was given the following terms of reference:

(Translation)

"The commission of inquiry is to review and assess Mr A's report of 30 June 1988 from M/S Harmoni's sealing expedition to the West Ice in 1988 and, in so far as possible, the footage he took of the seal-hunting in the West Ice. The commission is to review and assess the inspectors' reports for the period of 1982-1988 and all other available material concerning methods of seal-hunting.

The commission should in its recommendation assess all relevant measures considered necessary to enforce the rules prescribed for seal-hunting operations. The commission may submit proposals concerning enforcement, better means of control and training."

On 5 September 1990, the commission of inquiry submitted an extensive report from which it appears that it examined a large amount of evidence. It went through Mr A's report, film and a book on seal-hunting written by him. At the request of the commission Mr A was also examined as a witness by the Sarpsborg City Court (byrett). Furthermore the commission heard several of the hunters who were on board M/S Harmoni together with Mr A and several other sealing inspectors, and also went through the reports submitted by all sealing inspectors during the period 1982 to 1988. The commission examined other evidence as well.

In the report the commission of inquiry concluded that Mr A had no professional qualifications which could be documented, but that he had gained some experience on board M/S Harmoni during the 1987 season. The commission stated that Mr A did not have the qualifications a sealing inspector ought to have. It also found several examples where Mr A had misconstrued the situation.

 The commission examined all of Mr A's allegations concerning breaches of the seal-hunting regulations in detail. Furthermore, it reviewed all existing documentation concerning seal-hunting during the period 1982-1988 and enforcement of the seal-hunting regulations. It found that on certain points there had been breaches of the regulations, and suggested some amendments to the regulations. However, the commission did not find that any of the statements which were subsequently declared null and void by the judgment of the Nord-Troms District Court (herredsrett) of 4 March 1992 (cf. below) were proved to be true. Mr A's report of 30 June 1988 was published as an appendix to the commission's report.

In the meantime, in March 1989, the crew of the M/S Harmoni asked for a writ to be issued in a private criminal case against Mr A before the Sarpsborg City Court alleging defamation. By judgment of 25 August 1990 the City Court declared five statements in Mr A's report null and void and he was prohibited from showing in public any of his films from 1987 and 1988 concerning M/S Harmoni and its crew. Mr A was further ordered to pay compensation to each crew member as well as costs. Mr A's request for leave to appeal against the judgment was rejected by the Appeals Selection Committee of the Supreme Court (Høyesteretts Kjæremålsutvalg) on 16 May 1991.

On 15 May 1991, 17 crew members of M/S Harmoni instituted defamation proceedings against the applicants,  claiming that certain statements in the article of 15 July 1988 and certain statements in Mr A's report printed in the newspaper on 20 July 1988 should be declared null and void according to section 253, subsection 1, of the Penal Code. They also claimed compensation according to the Damages Act (skadeserstatningsloven) of 13 June 1969, sections 3-6, subsection 1, second sentence. 

Hearings were held in the Nord-Troms District Court from 11 to 13 February 1992 during which the crew members claimed an order declaring the following statements null and void:

(Translation)

(from Mr A's report published by the applicants on 20 July 1988):

1.1 "At 11.45 [a crew member] beat to death a female harp seal which was protecting her pup";

1.2 "At 14.40 [a crew member] beat to death a female harp seal which was protecting her pup";

1.3 "At 15.00 [a crew member] beat to death a female harp seal";

1.4 "The same day [I] pointed out to the skipper that [a crew member] did not kill cubs (kvitunger) in accordance with the regulations (i.e. he ... hit it with the spike and then dragged the cub after him)";

1.5 "At 15.00 [a crew member] beat to death a female harp seal which was protecting her pup";

1.6 "At 19.00 [a crew member] killed a female which was protecting her pup";

(from the applicants' articles published on 15 July 1988)

2.1 "Seal skinned alive";

2.2 "Not least the report includes an account of his [Mr A] being beaten up by furious seal-hunters who also threatened to hit him on the head with the 'hakapik' if he did not keep quiet".

Judgment was pronounced on 4 March 1992 in which the Court stated inter alia as follows:

(Translation)

"For a statement to be declared null and void the basic rule is that it must be defamatory. When considering this question, the statements must be assessed in terms of how they were perceived by the ordinary newspaper reader. Moreover, the statements must not be interpreted separately. The decisive factor must be how they were understood when the articles were read as a whole. The position is somewhat different, however, as far as justification is concerned. The court will revert to this matter below. Even though the statements are to be assessed on an overall basis, the correct approach must nonetheless be to accord weight to the fact that the affair was splashed across the front page in bold type. The first impression given was thus that something serious had occurred. This impression was not appreciably lessened or altered by the more detailed article inside the newspaper. This must be a factor of essential significance.

The court finds it clear that both statements of 15 July 1988 are defamatory. One of them read: 'Seal skinned alive.' The statement must imply that the seal-hunters were being cruel to the animals. It goes without saying that skinning an animal alive causes it severe pain. When read as a whole, the statement must be understood to apply not only to one seal, but to several. The impression created is that the seal-hunters not infrequently skinned seals while they were still alive.

The other statement reads: 'Not least, the report includes an account of his (Mr A's) being beaten up by furious seal-hunters, who also threatened to hit him on the head with the 'hakapik' if he did not keep quiet'. The statement must imply that the seal-hunters had assaulted Mr A, which is objectively a criminal act, cf. section 228 of the Penal Code. The threat to hit him on the head with their 'hakapiker' if he did not keep quiet comes within the objective substance of the offence set out in section 227 of the Penal Code. The allegation must therefore be understood to mean that the seal-hunters had committed two offences. Such a statement must clearly be defamatory.

As regards the statements concerning female harp seals, it is not disputed that such seal-hunting was not permitted in 1988. Reference is made to items 1.1, 1.2, 1.3, and 1.6 of the allegations. ...

 Item 1.4 also concerns a violation of the seal-hunting regulations. In this regard, reference is made to section 8 b of the regulations, according to which the seal shall first be struck with the 'hakapik's' blunt end and then with the spike. The reason for this is that the animals are to be knocked unconscious before they are killed with the spike. The statement must imply that the blows with the blunt end had been omitted.

Any breach of the regulations is a criminal offence. Violations are regarded as misdemeanours and the penalty is fines. Generally speaking, allegations of such violations must also be considered to be defamatory...

In the court's view, the statements relating to the killing of female harp seals must be considered defamatory. Hunting for this species of seal was not permitted at all in 1988. The statements do not differ from allegations of illegal hunting in general, and imply that the crew behaved in a morally reprehensible manner. The court will deal below with the question whether the statements can be regarded as substantiated and thus lawful.

The court is, however, in doubt as regards the statement quoted in item 1.4. It is not alleged that the seal pups were made to suffer, but simply that the killing methods used were not in accordance with the regulations. Given that it is not alleged that the seal pups were made to suffer, the statement can hardly be interpreted as implying strong moral condemnation of the seal-hunter. Given the purpose of the regulations, the provision concerning seal-hunting methods is in the nature of a disciplinary regulation. The decisive factor is whether or not the killing is effected in a responsible manner. The statement cannot be understood to mean that it was not. At any rate, given the fact that it was not suggested that the pups had been made to suffer, the matter must be regarded as trivial. Not without doubt, the court has concluded that the statement cannot be considered defamatory.

Accordingly, with the exception of item 1.4, the statements must come under two of the alternatives set out in section 247 of the Penal Code, i.e. 'to harm another person's good name or reputation', and 'to expose him to ... loss of the confidence necessary for his position or business'. There can be no doubt that the statements were likely to produce such effects. In this regard, the defendants have pointed out that considerable sympathy was shown to the crew during the ensuing public debate. The legal requirement is, however, that the statements were 'likely' to do harm. The ensuing debate revealed that opinions differed about the hunting process.

There has been considerable opposition to seal-hunting for a number of years, particularly at the international level. Although many people in Norway, and especially in Northern Norway, were opposed to Mr A, this did not mean that they automatically supported the seal-hunters. The latter received media coverage because of their hunting methods, the memory of which will persist. Apart from this, the crew were not much involved in the debate about other aspects of seal-hunting. Here the court has in mind the ecological aspects of the debate in particular. This debate was particularly heated during what were termed the seal invasions at the end of the 1980s.

It is not disputed that the group of persons to whom the statements apply is not so wide as to leave the individual unaffected. The defendants have thus not argued that deletion (of names) ensured sufficient anonymity. Even though the names of individual seal hunters had been deleted, it was clear that the vessel was M/S Harmoni. Therefore, everyone who was on board must be regarded as an aggrieved party ... In fact the deletion had the opposite effect of what was intended. In the report only four of the crew are named as having committed offences. If the newspaper had not deleted the names, the group of persons involved would have been reduced correspondingly. The court will revert to this below when discussing liability in regard to the claims for compensation.

Although the statements essentially come within the scope of section 247 of the Penal Code, it is also required that they be 'unlawful' (rettsstridige). In this regard the defendants have put forward several arguments. Firstly, it is submitted that the sealing affair in Norway was probably the biggest news story in 1988. It is argued that in such a situation, the press must have a great deal of latitude in order to illuminate all aspects of the matter (the 'public-interest' point of view)...

The court agrees that extensive freedom of expression is a necessary feature of general public debate. This is precisely the foundation on which Section 100 of the Norwegian Constitution rests, and it is extremely important in a democratic society ... In spite of this, however, there are some limitations. Firstly, the court has in mind that certain requirements relating to privacy and truth must be taken into account. The latter will be discussed in more detail below. All the statements complained of must be understood to mean that the crew of M/S Harmoni committed unlawful acts. This is the main theme of the newspaper articles of 15 and 20 July 1988.

It hardly appears to the court that the newspaper's presentation of the matter, particularly on 15 July, was primarily intended to promote a serious debate on social issues. The criminal aspects were highlighted. The public debate for and against seal-hunting definitely took a back seat. The form in which the material was presented must also be taken into consideration. The affair was splashed across the front page in bold type. Words such as 'lies' are used in one of the headings of the articles that follow. The court is definitely of the impression that the primary motive of the newspaper was to be the first to print the story. The front-page article in particular is of a sensational nature. Sufficient attention was not paid to the protection of other persons in this disclosure. The newspaper was also aware that the material was sensitive and thus had particular reason to proceed with caution. The journalist, Mr R, had been told, presumably in a telephone conversation with the Ministry of Fisheries on 13 July, that the report was exempt from public disclosure. In the light of this, the court cannot see that the newsworthiness of the matter provides sufficient justification for the way in which it was presented.

Secondly, it has been argued that the publication concerns an official document. According to the newspaper, such documents are reliable sources which one should be able to trust. In this regard, reference is made to section 253, subsection 3, of the Penal Code. Generally speaking, the court agrees that official documents normally are good sources for the press. How good they are, however, depends on the circumstances. In the present case, it was known to the newspaper that the report was exempt from public disclosure and the reasons why. The Ministry wished to investigate the matter more closely before deciding whether to make the report public. Mr R, the journalist, was also aware that the allegation that seals had been skinned alive would sound like a tall story. Mr R himself kept sheep and had some insight into the killing of animals. In spite of this, the matter was given wide coverage. Under the circumstances, the newspaper clearly should have investigated the matter more closely before printing the material. On the basis of the evidence submitted, the court must find that no investigations whatsoever were made. In his testimony Mr G, secretary general of the Norwegian Press Association, stated that, as a matter of press ethics, it was objectionable to print the allegation that seals had been skinned alive if Mr R was aware that it was untrue...

Norway has acceded to and is bound by both the UN Covenant on Human Rights of 1966 and that European Convention on Human Rights of 1950. The defendants have invoked Article 10 of the latter in particular, in connection with defending what is called the 'public interest' point of view. This may be described as the doctrine of unrestricted freedom of expression concerning matters of public interest. Although the court has in fact already dealt with this point, it sees reason to comment that the present case differs from the Sunday Times case and the Lingens v. Austria case.

The latter case concerned in particular the expression of political opinions. Mr Lingens, the editor, had used such expressions as 'disgusting opportunism', 'immoral' and 'unworthy' to describe certain actions of the Head of Government Bruno Kreisky's character. These are value judgments and are not, like the statements in the present case, linked to facts...

Defamatory statements are not unlawful (rettsstridige) if they are proved to be true, cf. section 253, subsection 1, and section 249, subsection 1, of the Penal Code. In the present case, the defendants have admitted that except in the case of one female harp seal, no proof of truth has been given. It has been argued, however, that Mr A produced photos showing that several female harp seals had been killed. Despite the admission, the court will make an independent assessment. With regard to item 2.1 of the allegations, it is obvious that the statement has not been proved to be true or probably true. On the contrary, Mr R was of the opinion that the statement had to be incorrect. Mr A and Mr K have two different versions of item 2.2. There is no reason for the court to give greater credence to Mr A than to Mr K. The court cannot see that there are other circumstances that would support this statement. Thus there is no evidence to substantiate the statement.

On page 84 of its report, the commission of inquiry comments as follows on the killing of female harp seals: 'Our conclusion is that we must regard the allegations that five female harp seals were killed as highly improbable.' It is, however, a fact that M/S Harmoni was carrying the skin of a female harp seal when it returned from the West Ice. Mr S's explanation for this was that Mr N had killed a harp seal pup. Its mother was nowhere in sight. She turned up afterwards and attacked Mr N. He became frightened and tried to hit her on the nose with his 'hakapik'. He hit her too hard, however, so that she started bleeding. The mother was killed because of the blood. This is the matter referred to in item 1.5. The court cannot see that the statement essentially gives an erroneous idea of what took place. Accordingly, the court does not find that Mr N acted unlawfully. If he acted in self-defence, the act was not unjustified. The court does not need to decide this. Thus, the statement will not be declared null and void.

The other statements concerning female harp seals have not, on the other hand, been proved by documentary evidence. The seal-hunters deny that more than one female harp seal was killed. In his testimony, Mr A referred to photos which, in his view, substantiated the statements. He refused to produce the photos so that they could be assessed by experts. The day after Mr A's testimony, i.e. on 13 February, there was an article in the newspaper Tromsø with a photo of female harp seals. According to the seal-hunters the photo dated from 1987, when such seal-hunting was permitted. The court cannot base its decision on newspaper articles, but only on what has taken place during the main hearing. Therefore it must be obvious that the other statements cannot be regarded as having been proved. Moreover, the court is somewhat surprised by Mr A's refusal to produce the photos in court.

To sum up, the court observes that the conditions for declaring the statements cited in items 1.1, 1.2, 1.3, 1.6, 2.1. and 2.2 of the allegations null and void have been fulfilled. The statement cited in item 1.4 is not deemed to be defamatory, whereas that cited in item 1.5 is deemed to have been proved true.

It is not necessary for the conditions for imposing a penalty to be fulfilled in order to declare the statements null and void, ... The Court will consider the question of liability when discussing the claims for damages.

The conditions for awarding damages are set out in sections 3-6, subsection one, of the Damages Act. The first sentence concerns loss incurred and future loss, whereas the second sentence concerns compensation for non-pecuniary damage. Only the latter type of compensation has been claimed. It is specifically argued that the newspaper must have acted negligently and that the court must find it reasonable to award such compensation. In the assessment, importance shall be attached to evident fault and other circumstances. Thus, a number of factors are relevant when determining the compensation. In the court's view, the newspaper has behaved negligently. No further investigations were made before the material was printed, despite the fact that the newspaper had been requested to do so. The court has expressed its views on this matter above. As regards the claim for compensation, the significance to be attached to the attempt to preserve anonymity must, however, be discussed. Deletion did not ensure the anonymity of the crew. As the name of the vessel, M/S Harmoni, was clearly stated, it was an easy task to find out the names of the crew. The individual seal-hunters were known to their neighbours, acquaintances, families, etc. The newspaper must have been aware of this. In any event, the newspaper ought to have realised that there was a real risk that individuals would be identified.

The court finds it reasonable that the plaintiffs be awarded compensation. The newspaper coverage caused the crew members such inconvenience and damage to their reputation that there are sufficient grounds for upholding their claim. A total of 2,999 seals were taken during the expedition to the West Ice. Even though there were probably some violations of the seal-hunting regulations, the publication of Mr A's report gives a grossly distorted picture. The general impression is that the regulations were by and large complied with.

As far as the editor is concerned, sections 3-6 must be read in conjunction with section 431 of the Penal Code. The editor (the second applicant) was at his cottage at the time and was not fully aware of the content of what was printed. Nonetheless, he did consent to the material being printed. (He) has not invoked the exception clause concerning freedom from liability. Accordingly, (he) must also be accountable for the newspaper articles. This in turn will have a bearing on the claims for compensation.

With regard to the question of quantification, a number of judgments have been invoked. The court has considered these judgments, but would add that there are a number of other factors. Particularly the court has in mind the fact that there are 17 plaintiffs in the present case, whereas there was generally only one in the judgments invoked. The court cannot see that it would be correct to determine the compensation as if there were one aggrieved party and then divide it by 17. Nor would it be correct to do the opposite, i.e. determine compensation as if for one aggrieved party and multiply it by 17. The compensation must be determined individually for each of the aggrieved parties. On the other hand, the crew members have indicated that each of them should receive equal compensation, and this has not been contested by the newspaper. Accordingly, the court will determine an average amount of compensation to be paid as damages to each of the plaintiffs.

 Factors indicating that ample compensation should be awarded are firstly statements made in the legislative history. Secondly, the degree of abusiveness and dissemination. In this connection it should be noted that Mr A was ordered to pay each of the plaintiffs NOK 10,000 in compensation for non-pecuniary damage. In addition he is to pay net profits of NOK 3,000, cf. section 17 of the Act relating to rights in photographic pictures. When determining the compensation for non-pecuniary damage, importance has been attached to the fact that the statements were widely disseminated. Given that this factor has already been taken into account, some allowance must be made in relation to (the first applicant). Otherwise the crew would to some extent receive double compensation.

Moreover, the newspaper was aware that the material was sensitive and that one of the allegations was false. The form is another factor, and no investigations were made. Nor has the newspaper apologised for printing the material.

Factors to the contrary are particularly the fact that the crew were permitted to speak. Generally speaking, the seal-hunting affair was one of the biggest news stories in 1988. Even though it does not relieve the newspaper of liability, this fact must be accorded some weight. In the light of the circumstances, the court cannot see that importance should be attached to the fact that inspectors' reports are generally public documents. Mr A's report was exempt from public disclosure. Nor is it of any significance that the report was also eventually published in 'Fiskaren'. This fact was only mentioned but not elaborated upon during the main hearing. The court has no knowledge of the context, circumstances, etc. The financial standing of the (first applicant) is of significance. The court finds that the newspaper has been in somewhat strained circumstances for several years. Still its gross annual turnover is said to be approximately NOK 30 million.

Accordingly, each of the plaintiffs is to be paid NOK 11,000 in compensation. NOK 10,000 is to be paid by the newspaper, and NOK 1,000 by the editor. The newspaper is also jointly and severally liable with the editor for the amount he has to pay.

...

The judgment is unanimous.

CONCLUSION OF THE JUDGMENT

1. Pursuant to section 253, subsection 1, of the Penal Code, the following statements in the newspaper Tromsø, dated 20 July 1988 are declared null and void:

a: "At 11.45 ... beat to death a female harp seal which was protecting her pup."

b: "At 14.40 ... beat to death a female harp seal which was protecting her pup."

 c: "At 15.00 ... beat to death a female harp seal."

d: "At 19.00 ... killed a female which was protecting her pup."

2. Pursuant to the said provision, the following statements which were printed in the same newspaper on 15 July 1988 are declared null and void:

a: 'Seal skinned alive.'

b: 'Not least the report includes an account of his being beaten up by furious seal-hunters, who also threatened to hit him on the head with the 'hakapik' if he did not keep quiet.'

3. (The applicants) are otherwise acquitted.

4.a: (The first applicant) is to pay NOK 10,000 - ten thousand kroner - in compensation for non-pecuniary damage to each of the plaintiffs: ...

b: (The second applicant) is to pay NOK 1,000 - one thousand kroner - in compensation for non-pecuniary damage to each of the plaintiffs.

c: (The first applicant) is jointly and severally liable with (the second applicant) for the amounts specified under b.

5. (The applicants) are jointly and severally liable for paying the plaintiffs' costs to the amount of NOK 136,342. ..."

On 18 March 1992, the applicants applied for leave to appeal against the judgment to the Supreme Court (Høyesterett) alleging that the District Court had misapplied the law.

On 18 July 1992, the Appeals Selection Committee of the Supreme Court decided not to allow the appeal according to Section 349 of the Criminal Procedure Act on the ground that it was obvious that the appeal would not succeed.

B. Relevant domestic law and practice

The task of a sealing inspector is to ensure that the regulations concerning sealing operations are observed. At the end of the season, the inspector shall as soon as possible submit a written report about the inspection to the Ministry of Fisheries. Sections 1 and 2 of the sealing regulations read as follows:

(Translation)

"Section 1. During hunting operations, seal-hunters must display the greatest possible consideration and use humane hunting methods in order to spare the animals unnecessary suffering.

Section 2. It is prohibited to capture or kill adult harp seals or female hooded seals on the whelping grounds ..."

Freedom of expression is protected by Section 100 of the Norwegian Constitution of 17 May 1814 which reads as follows:

(Translation)

"There shall be liberty of the press. No person may be punished for any writing, whatever its contents, which he has caused to be printed or published, unless he wilfully and manifestly has either himself shown or incited others to disobedience to the laws, contempt of religion, morality or the constitutional powers, or resistance to their orders, or has made false and defamatory accusations against anyone. Everyone shall be free to speak his mind frankly on the administration of the State and on any other subject whatsoever."

Restrictions on freedom of expression may only be imposed according to law. The responsibilities referred to in Section 100 are prescribed by statute.

Firstly, a defamatory statement may constitute a criminal offence under the Penal Code of 22 May 1902. Sections 246 and 247 read as follows:

(Translation)

"Section 246. Any person who by word or deed unlawfully (rettsstridig) defames another person, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding six months."

"Section 247. Any person who by word or deed behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed."

To constitute an offence, a defamatory statement must be covered by the wording of either section 246 or section 247.

Moreover, a statement may only be declared null and void if it is unlawful (rettsstridig). This follows expressly from the wording of section 246, but the restriction also applies to section 247 according to case-law. The reservation that substantive statutory criminal provisions only apply to actions which are unlawful (rettsstridige) is to be understood in such a way that it is conceivable that an action which is literally within the scope of the provision may nevertheless fall outside it. However, the law does not define more closely when this is the case. The decision involves a balance between the interests protected by the provision concerned and other interests which have to be protected. In each case it is for the courts to decide whether other interests have such weight that an action which verbatim is within the provision nevertheless cannot be considered unlawful (rettsstridig).

 As regards how such a restriction of the unlawful area should be further delimited, the Supreme Court case-law states that particular emphasis should be placed on whether the matter is of general interest, viewed in relation to what the case concerns and who the parties are. Furthermore, weight must be accorded to the context in which the statement appeared and the prelude to its appearance. Considerable importance must also be attached to whether the matter is presented in an objective, balanced manner with the main emphasis on eliciting what it concerns and any underlying factors, cf. Norwegian Law Gazette 1990, p. 636.

Secondly, a defamatory statement may by court order be declared null and void. Section 253, subsections 1, 2 and 3 of the Penal Code read:

(Translation)

"1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless it is otherwise provided by statute.

2. A claim that the allegation be declared null and void shall be summarily dismissed when the person who has made the allegation withdraws it before the main hearing in a manner the court finds satisfactory to the aggrieved person.

3. A claim that the allegation be declared null and void shall also be summarily dismissed:

a) when the allegation is made in a judgment, order, judicial decision or any other judicial act,

b) when the allegation is made by a witness during a statement in a court sitting or to the police or the prosecution authority, or by a party, legal representative, prosecutor, defence counsel, appointed expert or social inquirer or by an official employed by the prosecuting authority or the police during legal proceedings or investigation. In these cases the claim that the allegations be declared null and void shall, nevertheless, not be summarily dismissed when the court finds that the aggrieved person should have the truth of the allegation examined in declaration proceedings against the defendant or that the statement falls outside the limits of the case,

c) when the allegation is made in a written statement from the Storting's ombudsman for the public administration. ..."

Section 253 of the Penal Code constitutes a legal remedy used to declare defamatory statements null and void by judgment of the court when the person making the allegations has not succeeded in proving their truth although evidence to this effect is admissible. This legal remedy may only be used when the defamatory statement consists of facts since the truth of value judgments is not susceptible of proof. In order to be declared null and void, a defamatory statement must be covered by the wording of either section 246 or section 247 of the Penal Code and also be considered unlawful (rettsstridig) according to the above-mentioned case-law.

The remedy of declaring a defamatory statement null and void is not a penalty, but a civil legal claim. The remedy according to section 253 is nothing more than a judgment by the court that the  

person making the defamatory statement has not succeeded in proving its truth. Although this remedy is a civil legal claim, it is pursued through a procedure laid down by the Criminal Procedure Act.

Thirdly, if a statement is to be considered to be defamatory according to section 246 or section 247 of the Penal Code, the person making such a statement may be ordered by the court to pay compensation. Sections 3-6 of the Damages Act of 13 June 1969 provided:

(Translation)

"Sections 3-6 (compensation for defamation and infringement of privacy). Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions of imposing punishment are fulfilled, pay compensation for the injury sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non-financial injury as the courts find reasonable.

If the offence takes the form of libel, and anybody who has acted in the services of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher too are liable for the compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court decides to exempt them..."

COMPLAINTS

The applicants complain that their right to freedom of expression under Article 10 of the Convention has been violated as the District Court judgment amounts to an unjustified interference with the freedom of a newspaper to play its role in a democratic society.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 December 1992 and registered on 7 June 1993. On 11 January 1995 the Commission (Second Chamber) decided that notice of the application should be given to the respondent Government and invited them to submit written observations on the admissibility and merits thereof.

Following an extension of the time-limit fixed for this purpose the Government submitted their observations on 22 April 1995.

Following two extensions of the time-limit the applicants submitted their observations in reply to those of the Government on 31 July 1995.

THE LAW

The applicants complain that their right to freedom of expression has been violated as the District Court judgment amounts to an unjustified interference with the freedom of a newspaper to play its role in a democratic society. They invoke Article 10 of the Convention which reads:

"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."

The applicants point out that in a democratic society the question of presentation of a newspaper story is primarily one for the newspaper editor. Thus, subject to the exercise of the duties and responsibilities in Article 10 of the Convention it would be disproportionate to penalise the applicants on that ground. They furthermore maintain inter alia that penalties against the press for publishing information concerning matters of public interest would be permissible only in the narrowest of circumstances because of the likelihood that they would otherwise deter journalists from contributing to the public discussion of issues affecting the life of the community. In the circumstances of the present case the applicants maintain that the national court failed to properly weigh the competing considerations recognised in the Convention and that, therefore, the judgment according to which the applicants defamed the seal-hunters amounts to a disproportionate interference with their freedom of expression.

The Government submit that the applicants were not prevented from taking part in the debate concerning seal-hunting. What they did, however, was to publish allegations that the seal-hunters had committed serious criminal offences, something which turned out to be incorrect. In such circumstances the Government stress that a careful distinction must be made between facts and value judgments and point out that the present case concerns facts the existence and truth of which the applicants had every opportunity, but failed, to prove. Furthermore, the Government contend that the national court did not overstep the margin of appreciation when it found it necessary to declare null and void the untrue allegations published by the applicants.

The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

        H.C. KRÜGER                             S. TRECHSEL

         Secretary                                President

     to the Commission                        of the Commission