AS TO THE ADMISSIBILITY OF
Application no. 30881/09
by YLEISRADIO OY and Others
lodged on 12 June 2009
The European Court of Human Rights (Fourth Section), sitting on 8 February 2011 as a Chamber composed of:
Nicolas Bratza, President,
Sverre Erik Jebens,
Vincent A. de Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 12 June 2009,
Having deliberated, decides as follows:
The applicants are Yleisradio Oy, a Finnish broadcasting company (“the first applicant”), and two Finnish nationals Mr Ismo Olavi Silvo (“the second applicant”) and Mr Matti Herman Virtanen (“the third applicant”). The latter were born in 1958 and 1955 and live in Vantaa and Helsinki, respectively. All applicants are represented before the Court by Mr Mats Welin, a lawyer practising in Helsinki.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The third applicant is an editor and the second applicant an editor-in-chief employed by the first applicant.
On 19 April 2004 the first applicant broadcast on a national TV channel a current affairs programme entitled “Doctors as judges” (in Finnish: “Lääkärit tuomareina”). The programme dealt, in particular, with allegations of incest made in the context of child custody disputes and problems regarding the conduct of medical examinations, pre-trial investigation and court proceedings in that connection. The current practice was criticised for using certain psychological examinations and therapy as a means of obtaining evidence in criminal proceedings while disregarding circumstances favourable to the accused. Genuine cases of two fathers were used as examples. The first man remained incognito when interviewed, but the second man, A., appeared undisguised and using his own first name.
A. was introduced as a 55-year old driver from Helsinki. It was further announced that some two years earlier A. had been convicted and sentenced to imprisonment for sexual abuse of his two children (their gender and current age were mentioned). He had not been allowed to meet his children for four years.
The judgment concerning A.’s conviction for sexual offences had been declared confidential by the Court of Appeal (hovioikeus, hovrätten), excluding its operative part. Also, the case file had been declared confidential. However, some information included in that file was revealed on air. It was mentioned, inter alia, that the children had undergone examination and treatment in a named child psychiatric facility and that information gained through those examinations had been used as evidence in the pre-trial investigation against A. Some details about the court proceedings and the conduct of the children’s mother were also mentioned. Furthermore, three medical experts and A.’s counsel in the criminal proceedings were interviewed.
The programme was broadcast anew twice that same week on the applicant company’s digital TV channel.
On 3 June 2004 Z., the children’s mother, filed a criminal complaint.
On 14 March 2006 the public prosecutor preferred charges against A., the second and third applicants and another person within the broadcasting company. In his indictment the prosecutor asserted that A. had breached his duty of secrecy, ordered by the Court of Appeal, by disclosing confidential information included in the judgment and case file concerning the above-mentioned criminal matter. The prosecutor further contended that the third applicant, being the editor of the above-mentioned programme, had incited A. to commit that offence. As to the second applicant, the prosecutor contended that he had abetted A.’s offence by approving the script and allowing the broadcasting of the programme in his capacity as editor-in-chief. Furthermore, the prosecutor demanded punishment of all four defendants for dissemination of information violating personal privacy and aggravated defamation.
Z. and the children, X. and Y., joined the charges and submitted a separate claim for damages. In addition to the defendants, the civil claim was brought against at the first applicant.
On 21 September 2006 the Helsinki District Court (käräjäoikeus, tingsrätten) issued its judgment. It convicted A. and the second and third applicants of disseminating information violating personal privacy, dismissing the remaining charges. The second applicant was sentenced to 30 unit fines amounting to 2,340 euros (EUR) and the third applicant to 30 unit fines amounting to EUR 1,110. The court further ordered A. and the second and third applicants to pay witness fees, damages and legal costs, partially jointly with the first applicant.
In its reasons the District Court noted the competing interests of freedom of expression and the right to privacy. It referred to the applicable domestic provisions as well as the Convention and the European Court’s case-law on the subject. The court stated that, even though the importance of an issue and the general public interest might justify revealing an individual’s identity, there were rarely sufficient grounds for exposing the identity of the victim of a crime.
Concerning the case at hand, the District Court found that since A.’s face had not been concealed, he could be recognised from the programme. According to the court, becoming a victim of a sexual offence was a matter of private life and unauthorised publication of that information was conducive to causing suffering. The programme had contained certain facts, such as the relationship between A. and the victims, which in the court’s view had revealed also the identity of X. and Y. The court noted that the programme had treated an important issue, as such, and it had provoked a wide public debate on the internet. However, the general public interest had not justified broadcasting such information which enabled the identification of the victims beyond their immediate circle of family and friends, who had already been aware of the previous trial. According to the court the prosecution did not need to establish that someone had actually gained knowledge of a private matter, but it sufficed that such information had been made available to a large number of people.
All parties, with the exception of the acquitted defendant, appealed against the judgment to the Helsinki Court of Appeal. The applicants claimed that X. and Y. could not have been recognised by persons other than a few family members and friends belonging to their immediate circle. Because the issue had been extremely important it had been unnecessary to restrict the applicants’ freedom of expression by imposing criminal sanctions on them.
On 20 July 2007 the Court of Appeal gave its judgment. It acquitted all the defendants and set a side the question of liability for damages. Having regard to the evidence produced before it at an oral hearing, the court found that it had not been established that any person had recognised X. or Y. as a result of the programme. Thus, no unjustified dissemination of fact, insinuation or a picture linking X. and Y. to A.’s conviction had occurred. One of the appellate court judges submitted a dissenting opinion, finding that A. and the second and third applicants were guilty of disseminating information violating personal privacy and that they, along with the first applicant, were liable for damages.
The prosecutor, X., Y. and Z. sought leave to appeal to the Supreme Court (korkein oikeus, högsta domstolen). Leave was granted.
On 22 January 2009 the Supreme Court issued its judgment. As to the charge concerning dissemination of information violating personal privacy, the court stated the following.
“[The applicable provision] safeguards the constitutional right to private life. However, in the interpretation of that provision freedom of expression shall also be taken into account and in each individual case these two constitutional rights have to be weighed against each other. In this exercise it has to be considered, inter alia, how close to the core area of a person’s private life the information published will penetrate and how necessary the interference with freedom of expression thus must be.
The Supreme Court has in its case-law (inter alia, KKO:2005:82 and KKO:2006:20) referred to the case-law of the European Court of Human Rights and stated that the relevant criteria to be followed in reconciling the right to protection of private life and freedom of expression correspond to those principles which have been adopted in the domestic provision concerning dissemination of information violating personal privacy. Freedom of expression, as a constitutional right, does not hinder the application of [the said provision] as it stands.
The European Court of Human Rights has, in a number of decisions, stressed the public function of the press and freedom of expression of journalists. Weight has been attached to the question of whether the published information concerns a matter relevant to public debate. Article 10 of the Convention does not, however, provide unlimited freedom of expression even in [those cases].
In assessing whether information concerning the private life of the children and their mother has been disseminated unlawfully in a manner set out in Chapter 24, Article 8(1) of the Penal Code, the Supreme Court notes at the outset that attaching criminal liability to the applicants’ conduct constitutes an interference with their freedom of expression. The case at hand concerns a current affairs programme broadcast on a national TV channel. The programme has dealt with an issue of general importance and it has provoked public debate. It follows that particular emphasis has to be placed on reasons given for restricting freedom of expression.
In this case, the use of freedom of expression has interfered with the constitutional right to private life of under-aged victims of a sexual offence and their guardian. Firstly, the fact that the children have been victims of that offence falls into the sphere of private life. Furthermore, the programme has dealt with circumstances concerning the children’s state of health, their examination and treatment as well as the conduct of their mother in connection with a sexual offence. That information has been particularly delicate from the children’s point of view. Those matters have been a part of the children’s, and their mother’s, private life and their exposure has thus been conducive to causing suffering also to Z.
The reasons stated in the paragraph above have accentuated the requirement for protection of private life for X., Y. and Z. The information revealed in the programme has fallen into the core area of their private life. On the other hand, the Supreme Court considers that the significance, credibility and journalistic message of the programme would not have been essentially jeopardised even if A. had appeared incognito, similarly to the other father interviewed. Revealing information in the programme has constituted such a fundamental breach of the right to privacy that interfering with freedom of expression has, in those circumstances, been justified. The dissemination of information has thus been unlawful in accordance with Chapter 24, Article 8(1) of the Penal Code.”
The Supreme Court went on to examine the question of possible identification of the applicants on the basis of the information revealed in the programme. It reiterated that the applicable provision did not require that a person is, de facto, recognised, but making a piece of information concerning private life available to a large number of people was enough for the establishment of criminal liability. Having regard to the evidence presented in the trial, the Supreme Court concluded that it was probable that several persons could have connected A. with X. and Y. on the basis of the information given in the programme. Even though this group of people apparently was not very large, it was nevertheless enough to bring Chapter 24, Article 8(1), of the Penal Code into play.
The Supreme Court further pointed out that the possible identification of the injured parties was essentially due to the fact that A. had appeared undisguised and given his own first name. By revealing information concerning the private life of X., Y. and Z. in this context, A. and the second and third applicants had all made themselves guilty of disseminating information violating personal privacy.
The Supreme Court went on to examine whether A. was to be held responsible for a secrecy offence, as described in Chapter 38, Article 1 of the Penal Code. It answered that question in the affirmative, noting that he had been bound by the specific secrecy order placed by the Court of Appeal. The Supreme Court further found that the third applicant had initially contacted A. and proposed that he participate in the programme. Later, the third applicant had suggested that A. appear in the programme undisguised, as that would add more credibility to his account. The court considered that the third applicant had to realise the delicate nature of some of the information given by A. As to the second applicant, the court noted that he had viewed the programme before it went on air and approved it for broadcast. Thus he had contributed to the unlawful disclosure of confidential information. The court went on to assess whether the right to freedom of expression had justified the conduct of the second and third applicants. It referred to the case-law of the European Court and noted that, in this case, the disclosure of confidential information had not been based on the need to inform the public. On the contrary, it had been necessary to conceal that information. The court thus concluded that the conduct of the third applicant constituted incitement to a secrecy offence, and that of the second applicant, abetting a secrecy offence. The court did not, however, take these offences into account in sentencing the applicants, noting that the conduct had already been found punishable as dissemination of information violating personal privacy.
Similarly to the lower courts, the Supreme Court dismissed the charges concerning defamation.
As to the civil claims, the court took note of the evidence produced in the trial and observed that the exposure of sensitive information in the programme had negatively affected X. and Y.’s mental condition. It had further caused Z. severe mental distress. For these reasons, and relying on section 14 of the Exercise of Freedom of Expression in Mass Media Act and Chapter 5, section 2, of the Tort Liability Act, the court found that they were each entitled to damages.
The Supreme Court convicted A. and the second and third applicants of dissemination of information violating personal privacy. The second applicant was sentenced to 50 unit fines amounting to EUR 3,900. The third applicant was also sentenced to 50 unit fines, which in his case amounted to EUR 1,850. All those convicted along with the first applicant were ordered to pay X., Y. and Z, jointly and severally, EUR 5,000 each. They were also ordered to compensate, jointly and severally, the injured parties’ legal costs at all three instances in the amount of EUR 16,717.68. A. and the second and third applicants were further ordered to pay to the State, jointly and severally, EUR 1,042.47 in witness fees.
The above Supreme Court judgment became a precedent.
B. Relevant domestic law
The Finnish Constitution (Suomen perustuslaki, Finlands grundlag, Act no. 731/1999) provides in relevant parts:
“Section 10 – The right to privacy
Everyone’s private life, honour and the sanctity of the home are guaranteed. ...
Section 12 – Freedom of expression and right of access to information
Everyone has the freedom of expression. Freedom of expression entails the right to express, impart and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. ...”
Chapter 24, Article 8(1), of the Penal Code (rikoslaki, strafflagen, Act no. 531/2000) provides that a person who unlawfully, through the use of mass media or otherwise by making available to many persons, disseminates information, an insinuation or an image of the private life of another person, so that the act is conducive to causing that person damage or suffering, or subjecting that person to contempt, shall be sentenced for dissemination of information violating personal privacy to a fine or to imprisonment for up to two years.
Chapter 38, Article 1 of the Penal Code (Act no. 578/1995) provides that a person who, in violation of a secrecy duty provided by an Act or Decree or specifically ordered by an authority pursuant to an Act, discloses information which should be kept secret and which he or she had learnt by virtue of his or her position or task or in the performance of a duty, or makes use of such a secret for the gain of himself or herself or another person, shall be sentenced ... for a secrecy offence to a fine or to imprisonment for up to one year.
Section 14 of the Exercise of Freedom of Expression in Mass Media Act (laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation, Act no. 460/2003) stipulates that the provisions of the Tort Liability Act apply to liability and compensation for injury or loss arising from the contents of a message provided to the public. The publisher and the broadcaster are liable for such injury or loss arising from their operations also in the event that it has been caused by someone other than an employee.
Chapter 5, section 2, of the Tort Liability Act, as in force at the relevant time (vahingonkorvauslaki, skadeståndslagen, Act no. 412/1974), provided that a person who had suffered a bodily injury or other personal injury was entitled to damages to cover medical costs and the other costs arising from the injury, as well as loss of income and maintenance, pain and suffering, invalidity and other permanent handicap.
The applicants complained under Article 10 of the Convention that the Supreme Court’s judgment violated their right to freedom of expression. The applicants had taken due care in order to prevent the recognition of X. and Y. by any person outside their immediate circle. It had also been established in the Court of Appeal that even those belonging to the immediate circle who had become aware of the matter, had learned about it from Z. The Supreme Court had erred in finding that the mere possibility of identification was sufficient for bringing criminal and civil liability into play. The Supreme Court had failed to give sufficient reasons as to the applicants’ criminal intent. Furthermore, the second and third applicants were found guilty of a secrecy offence without sufficient proof.
The programme had dealt with an issue of general importance. The State had protected the plaintiffs’ privacy not only in practice but also in theory. The interference with the applicants’ freedom of expression had not been necessary in a democratic society. The convictions and awards made to the plaintiffs were disproportionate to the interest protected.
According 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).
The 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).
The 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, ECHR 1999-I).
In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. 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), 26 April 1979, § 62, Series A no. 30; 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).
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 (see Von Hannover v. Germany, no. 59320/00, §§ 50-53 and 59, ECHR 2004-VI). As regards Article 8, the Court reiterates that its object is essentially that of protecting the individual against arbitrary interference by public authorities. It does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life (see Von Hannover, cited above, § 57, and Stjerna v. Finland, 25 November 1994, § 38, Series A no. 299-B). In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; in both contexts the State enjoys a certain margin of appreciation (see, among many other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998-I).
Turning to the facts of the present case, the Court firstly notes the Supreme Court’s finding that attaching criminal liability to the second and the third applicants’ conduct constituted an interference with their freedom of expression. The Court sees no reason to take a different view and notes that the liability for damages and legal costs in respect of all applicants and the restitution to the State of witness fees by the second and the third applicants also amounted to such interference. Even though the applicants criticised the application of the relevant provisions by the Supreme Court to their disadvantage, they did not contest that there was a legal basis for the conviction and the compensation. Furthermore, the Court finds that Chapter 24, Article 8(1), and Chapter 38, Article 1, of the Penal Code, as well as section 14 of the Exercise of Freedom of Expression in Mass Media Act and Chapter 5, section 2, of the Tort Liability Act did not disclose any ambiguity as to their contents. The interference was therefore “prescribed by law”, within the meaning of Article 10 § 2 of the Convention. The Court further notes that the interference pursued the legitimate aim of protecting the reputation or rights of others.
It remains for the Court to examine whether the interference was “necessary in a democratic society”. The Court observes at the outset that the programme dealt with problems concerning the means of obtaining evidence against persons accused of incest and the lack of adequate respect for the rights of the defendants in that connection. The Court agrees, as indeed did the Supreme Court, that the programme clearly involved an element of general importance and interest. The Court observes that the Supreme Court quite rightly noted that in such situations any restrictions on freedom of expression should be imposed with particular caution.
The Court has emphasised in its previous case-law 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). The same principles are applicable to the present case. Moreover, in the case of Sunday Times v. the United Kingdom (no. 1) (cited above, § 65) the Court stated that the media not only have the task of imparting such information and ideas, but the public also has a right to receive them.
It is not uncommon that discussion of individual cases is used to highlight a more general problem (see, inter alia, Selistö v. Finland, no. 56767/00, § 68, 16 November 2004), as was also done in the present case. Similarly to the Supreme Court, the Court finds that the core problem with the programme was not the subject itself, but the means chosen by the applicants in addressing that issue. The identity of one of the two fathers convicted of incest was concealed by not revealing his name or face. However, the other father appeared undisguised and his first name was given. The Court notes that the injured party to the criminal proceedings which followed, under-aged victims of the sexual offence and their guardian, were private persons and that sensitive information about their lives was revealed on air nationwide. In this context the Court does not find arbitrary the Supreme Court’s finding that the relevant criminal provision did not, in general, require that the victims be recognised de facto and that, in this particular case, it was probable that several people, even if a very limited group, could have connected the victims to the person interviewed. The fact that no bad faith may be attached to the applicants’ conduct does not give a reason to depart from that assessment.
The Court takes note of the careful balancing exercise made by the Supreme Court between the two basic conflicting rights, namely that of freedom of expression and the right to private life (see mutatis mutandis Nordisk Film & TV A/S v. Denmark (dec.), no. 40485/02, ECHR 2005-XIII). The Court finds convincing the Supreme Court’s conclusion that the important message of the programme could have been brought to the public, without stripping it of its weight, even if both fathers had appeared incognito. In the Court’s view the applicants’ contention about inadequate reasoning of that court as to the question of criminal liability does not raise an issue under the Article 10. For the Court, what is decisive is that the Supreme Court gave relevant and sufficient reasons for the necessity of sanctioning the applicants, and did so in application of the Court’s case-law under Article 10 of the Convention.
As to the severity of the sanctions imposed, the Court observes that the second and the third applicants were tried and convicted in criminal proceedings and faced the possibility of a prison sentence being imposed on them. In the context of freedom of expression, such measures have been found problematic in cases concerning defamation, but also as regards infringements of privacy (see Saaristo and Others v. Finland, no. 184/06, § 69, 12 October 2010). The Court accepts, however, that in a case like the present one, where a domestic court has already taken measures to protect the identity of the under-aged complainants, the State cannot be reproached for applying proportionate criminal sanctions to punish a breach of their privacy. The Court has been particularly attentive to the possible chilling effect on the media of any interference by the State with freedom of expression. However, for the reasons advanced by the Supreme Court and discussed above, the Court considers that the interference at issue cannot be interpreted as inhibiting in any way the free flow of information by the media on matters of public interest.
Having regard to the above considerations, as well as the margin of appreciation accorded to the State, the Court accepts that the penalties and the awards of compensation in this case were not disproportionate in regard to the competing interests at stake.
In conclusion, the Court is satisfied that the reasons relied on by the Supreme Court were relevant and sufficient to show that the interference complained of was “necessary in a democratic society” and that a fair balance between the competing interests was struck.
It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Nicolas
YLEISRADIO OY AND OTHERS v. FINLAND DECISION
YLEISRADIO OY AND OTHERS v. FINLAND DECISION