Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Expands Expression
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The Applicant’s right of access to the courts was violated because the Swedish Constitutional Court refused jurisdiction under the Swedish Constitution. The Court found there was a sufficiently strong connection between the alleged defamation and the Swedish Courts to allow for jurisdiction in Sweden.
This case involves a dispute between Raja Arlewin (the Applicant, who is a Swedish citizen) and X, who is a Swedish citizen and the Chief Executive Officer of a television show that accused the Applicant of involvement in criminal activities. The television show is produced in Sweden, aired in Sweden, was produced for a Swedish audience, and was in the Swedish language. However, the show was sent by satellite from Sweden to a U.K. broadcasting company. The U.K. company then transmitted the show to Sweden. The Applicant attempted to bring a claim against X for gross defamation, for allegations that the Applicant was involved in organized crime.
The Stockholm District Court dismissed the constitutional claim, as the program did not originate in Sweden. However, the Court stayed the penal law claim to be determined following a hearing. The Applicant appealed the decision of the District Court. The Court of Appeals upheld the decision of the District Court, but noted that the Applicant may have a claim in British Court. The applicant again appealed. The Supreme Court refused the appeal.
Criminal proceedings against the Applicant regarding the program were investigated and he was convicted and sentenced to five years in prison for aggravated fraud and bookkeeping offenses. This appeal followed.
The Court first discussed the framework of the law on the freedom of the press act and the applicability of the constitutional law regarding the broadcasts and television. The Court noted that Swedish constitutional law is not applicable in cases involving television programs or broadcasts transmitted from satellites outside of Sweden, as was the case here. However, this did not strip away protections of freedom of communication and freedom to procure information. Libel can only be found against a television program if the alleged violation amounts to a violation of the Applicant’s freedom of expression.
The Court then examined various domestic decisions discussing violations relating to freedom of expression. These decision established that programs transmitted though a third party could not be considered as emanating from Sweden. However, this was a procedural issue and therefore did not necessarily preclude review of the substantive legal issue. Even if the constitutional claim was found to be inapplicable, there exist other protections in the law for these types of harm. Specifically, one case found that freedom of communication applied to statements, even through programs were transmitted outside of Sweden.
Next, the Court turned to European Union Law and how it relates to the case at hand. The Court noted Council Regulation No. 44/2001 which establishes jurisdiction and enforcement, and establishes the principle that jurisdiction generally lies where the defendant is domiciled. Further, the court discusses the EU Audiovisual Media Services Directive which establishes jurisdiction over media services; in these circumstances liability lies with the person with editorial responsibility over the program in question.
The Government argued that the case fell outside the jurisdiction of the Swedish Courts, as the broadcast itself gave rise to the potential violation (which emanated from the U.K.) rather than the statements within the broadcast. The Applicant countered that the jurisdiction of the Government was grounded by the merits of the complaint. The issue for the Court was whether Sweden violated the Applicant’s right of access to the courts by dismissing the claim of defamation based on a lack of jurisdiction.
The ECtHR found the issue of whether Sweden had jurisdiction in this case to be so intertwined with the merits of the case that it needed to be considered in conjunction with the merits.
The Government argued that the Applicant had not exhausted his domestic remedies before seeking review at the ECtHR. The Government asserted that the Applicant failed to claim damages from the state. The Applicant countered that the original act in this case involved a third party and not the state, thereby making this case distinguishable. The ECtHR dismissed the argument that the Applicant had not exhausted all his remedies, finding that this was a unique situation and the Government had not identified “a remedy which was able to afford redress in respect of the violation alleged by the applicant and which he should have been required to pursue.” ((Arlewin v. Sweden, App. No. 22302/10, para. 48 (2016).)) Therefore, the application was determined to be admissible.
Finally, the ECtHR turned to whether there had been a violation of Article 6 of the Convention. The Applicant alleged that his access to the courts had been violated through refusal to hear the claim because the only thing that occurred in the U.K. was the transmission of the satellite. Furthermore, although there was a remedy available in the U.K., this was not economical or practical for the Applicant to pursue. The Swedish government countered that supervisory jurisdiction lay with solely the U.K. courts as the broadcasting company was located and established in the U.K., and there were adequate remedies available for the Applicant in the U.K. courts. ((Id. at 17.))
The ECtHR found the Brussels I Regulation to be controlling in this matter, giving jurisdiction to Sweden and the U.K. Further, the Court noted that because both the Applicant and the Defendant were nationals of Sweden, there were strong connections between Sweden and the television program and the U.K. company transmitting the program. The Court held this to be sufficient to create a “prima facie obligation on the Swedish State to secure the applicant’s rights, including the right of access to court.” ((Id. at para. 65.)) Therefore, even though the Applicant may have had a right of access to the U.K. Courts, this did not relieve the Swedish Courts of a duty to provide the same right. Thus, the ECtHR found there had been a violation of Article 6 of the Convention.
The Court lastly discussed the minor arguments of violations of Article 8, 13, and 41 of the Convention. Article 8 provides protections for privacy rights; Article 13 provides the right to have a claim examined on the merits; and Article 41 allows for damages where a violation has occurred. The Court found no separate claims under Article 8 or 13. The Court awarded the applicant 12,000 EUR in non-pecuniary damages, and 20,000 EUR in costs and expenses.
Judge Silvis wrote separately to state that he would find Sweden had jurisdiction under Article 1 of the Convention which requires states to secure the rights of persons within a states jurisdiction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom of expression, by holding that Sweden has an obligation to provide access to the Court’s under the Brussels Convention, even if national law appeared to limit the jurisdiction of the country. In this case, the majority of the facts surrounding the case occurred in Sweden, and a defamation action in the U.K. was not a reasonable or practical alternative.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Section 2, 8, and 13
Chapters 5 and 6
Case significance refers to how influential the case is and how its significance changes over time.
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