Defamation / Reputation
Johnson v. Steele
Closed Expands Expression
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The Grand Chamber of the European Court of Human Rights (ECtHR) found that the respondent state of Norway had breached the rights of the applicants – the publisher and editor of the newspaper Bladet Tromsø – under Article 10 of the European Convention on Human Rights (ECHR) by holding them guilty for defamation. This conviction for defamation followed the publication of a report and statement made by an inspector appointed by the Ministry of Fisheries, Mr. Lindberg, to inspect seal hunting. The report and the statement alleged that members of a seal hunting vessel, the Harmoni, had committed criminal acts and had been particularly cruel to seals. The Ministry of Fisheries impugned the authenticity of the report, and the crew of the Harmoni won a charge of defamation against Mr. Lindberg. They subsequently won a case of defamation against the applicants as well. The ECtHR found that conviction of the applicants was an unjustified interference with their rights because the published statements and their report, taken in their context did not constitute sufficient reasons for an interference with the freedom of press. The applicants had acted in good faith in discharging their public watchdog function by reporting on a matter of public interest. They were further discharged from their duty of verifying the report issued by Mr. Lindberg because the nature and degree of defamation were not so serious, and the context of the issuance of the report (in the official capacity of a Ministry inspector) suggested a high degree of credibility.
The applicants were Bladet Tromsø A/S, a limited liability company publishing the daily newspaper Bladet Tromsø, and its former editor Mr. Pål Stensaas. The newspaper had published certain articles regarding a report of a seal hunting inspector in 1988 on the workings of the seal hunting vessel Harmoni, and were subsequently subject to defamation proceedings by the crew of the vessel for this.
In 1988, during seal hunting season, a freelance journalist Mr. Odd F. Lindberg was on board the Harmoni while acting as seal hunting inspector on behalf of the Ministry of Fisheries. Over the course of his appointment, he published twenty-six articles in Bladet Tromsø regarding his inspections.
On 12 April 1988, an interview with Mr. Lindberg was published by Bladet Tromsø. In the interview, Mr. Lindberg alleged that some hunters on the Harmoni had acted in violation of the 1972 Seal Hunting Regulations. The article did not name the seal hunters or delve into their methods. Thereafter, on 13 April 1988, the skipper of the Harmoni and three of his crew members also interviewed with Bladet Tromsø to defend themselves. They alleged that Mr. Lindberg was lying and stated that they felt “blackened” by him.
Meanwhile, Mr. Lindberg finished writing up his official inspection report, and submitted it to the Ministry of Fisheries, detailing the violations by the crew members of the Harmoni and naming them as well. Mr. Lindberg also made recommendations for better implementation of the regulations. The Ministry of Fisheries decided under Norwegian laws to temporarily exempt the report from public disclosure because it had allegations of statutory offenses. Bladet Tromsø covered the decision of the Ministry on 15 July 1988 and included excerpts from Mr. Lindberg’s report within the article. On 19 and 20 July 1988, the newspaper published the entire report redacting the crew members names and explaining the background to the report, as well as circulating allegations about Mr. Lindberg’s supposed affiliation with Greenpeace. Between 15 and 20 July, Bladet Tromsø issued other articles containing interviews and comments by crew members from the Harmoni, representatives from the Norwegian Sailors’ Federation, Mr. Lindberg, and Greenpeace.
On 20 July 1988, the Ministry of Fisheries reported that it was suspending disclosure of the Lindberg report until further notice, because veterinary expertise did not support Mr. Lindberg’s findings. The Ministry also explained the background to Mr. Lindberg’s appointment as inspector but stated that it had subsequently become clear that he did not in fact possess the requisite competence and education for an inspector, and therefore the seriousness of his report was cast into doubt.
Again, Bladet Tromsø covered these developments in articles on 21, 23 and 25 July, 1988, which also included quotes from officials within the Ministry, crew members from the Harmoni, and other former seal hunting inspectors.
During the same period, other news agencies reported on similar matters as Bladet Tromsø, drawing on the report as published by Bladet Tromsø or citing it as their source. On 9 February 1989, Mr. Lindberg conducted a press conference on his report, and broadcast clips from footage he took on the Harmoni. This revived waning interest on the matter.
As a response to the media attention, the government took measures with respect to seal hunting, inter alia, banning the killing of seal pups and setting up a Commission of Inquiry. On 5 September 1990, the Commission released a report which concluded that Mr. Lindberg’s claims lacked evidence. However, Mr. Lindberg’s footage did establish some violations of hunting regulations. The Commission concluded with recommendations pertaining to the amendment and implementation of hunting regulations, some of which were similar to Mr. Lindberg’s recommendations.
The Harmoni crew initiated defamation proceedings against Mr. Lindberg in March 1989 for his statements about their 1987 and 1988 hunting expeditions. In August 1990, the City Court ruled that some statements in the inspection report, as well as some other statements made by Mr. Lindberg were null and void under Article 253 § 1 of the Penal Code. He was also ordered to pay damages and costs, and was barred from publicly sharing his footage on the Harmoni. Mr. Lindberg’s leave to appeal was rejected. The Swedish Supreme Court also did not uphold his claim against the execution of the judgement in Sweden.
Thereafter, on 15 May 1991, the crew members of the Harmoni also initiated defamation proceedings against the applicants in this case. The Nord-Troms District Court found the applicants guilty of defamation, declaring some of their statements null and void and awarding compensation to the crew. The Supreme Court refused leave to appeal on 18 July 1992.
On 10 December 1992, Bladet Tromsø A/S and Mr. Pål Stensaas complained to the commission of an Article 10 violation. On 9 July 1998, the Commission declared that there had been a breach of Article 10 under the Convention. On 24 September 1998, the Commission referred the case to the Grand Chamber, and on 29 October 1998 it was referred by the State of Norway.
Before the Grand Chamber, the applicants submitted that Article 10 had been violated by the Nord-Troms District Court judgement of 4 March 1992, and the Supreme Court’s subsequent rejection of the application for appeal. The applicants asked for just satisfaction under article 41 of the Convention. The respondent submitted that the interference with Article 10 rights of the applicants had complied with the tripartite test of legality in the jurisprudence of the court.
Both the applicants and the respondent agreed that the judgement of the Nord-Troms District Court and the Supreme Court’s refusal to allow leave to appeal were an interference with the applicants’ rights under Article 10. They further agreed on this being an interference adequately prescribed by law and in pursuance of the legitimate aim of “protection of the reputation or rights of others” [para. 50]. Thus, the Court was principally concerned with the third limb of the three-part test for legality of restrictions i.e., whether it was a necessary interference in a democratic society.
The applicants and the commission argued along the same lines – that Mr. Lindberg’s report pertained to a matter of “serious public concern” [para. 51] and the motivation behind its publication had been to create debate on how to improve the seal hunting industry. Furthermore, the names of the offending crew members had been redacted, and the report had been published only after the members themselves had asked for it to be made public. The newspaper had also included inputs from the crew members, government officials and persons from the seal hunting industry in its debate. Additionally, the applicants, as press members were not expected to investigate the veracity of Mr. Lindberg’s observations as a ministry inspector. Finally, the court’s measures against the applicants did not offer protection to the rights and reputations of the hunters because the report had been public for a long time by then and had been reinforced by other publications, and the crew members had already received successful judgements against Mr. Lindberg. Since the statements, taken in their appropriate context, lent themselves to an issue of public interest and were not “private affairs of private persons” [para. 52], the applicants and commission argued that the interference was unjustified.
The government claimed that the case pivoted on a conflict between the right to freedom of expression and the right to protection against unlawful attacks on honor or reputation (Article 17, International Covenant on Civil and Political Rights, 1966). By engaging in sensational coverage of Mr. Lindberg’s report, Bladet Tromsø had attacked the reputation of the seal hunters. The government did not contest the public importance of the issue, but argued that such a discussion could have been invoked without attacking the crew of the Harmoni, who were easily identifiable and not public figures. Furthermore, Bladet Tromsø had acted with the knowledge that the report was not made public by the government so as to afford the accused the opportunity to defend themselves against accusations. Bladet Tromsø was also aware that the credibility of Mr. Lindberg and the report had been disputed, leading the newspaper to breach its duty under the Norwegian Code of Press Ethics by not verifying the truth. The government further contested that the report was published following requests by the crew to make it public, and that the crew had been invited for comment. In light of this, and the court’s penalty on the applicants being of a civil and not criminal nature, the government submitted that the interference was proportionate.
The Court first outlined essential principles regarding “necessity in a democratic society”. First, the court noted that this can be established by demonstrating
These fall within a margin of appreciation subject to supervision by the Court. In this case, the Court found that the margin of appreciation was limited by the “public watchdog” function of the press, referencing Goodwin v. United Kingdom ECtHR  17488/90.
This was in line with the second reiteration of the court – the importance of the press in a democratic society and its duty to respect the rights and reputation of others, as well as maintain the confidentiality of information while reporting on issues of public interest. Nevertheless, journalistic freedom encompasses “a degree of exaggeration, or even provocation” [para. 59] as per Prager and Oberschlick v. Austria ECtHR  15974/90.
The Court found here that the Nord-Troms District Court’s findings of defamation were based on the alleged negligence of the newspaper in publishing untrue statements insinuating that the seal hunters had been cruel and committed criminal offences. The Court found that while the district court’s reasoning was relevant, it was insufficient reasoning for the purposes of Article 10 because the statements had to be assessed in the context of seal hunting in Norway at the time of their publication. Article 10 protects offensive ideas and the ability of the press to report on matters of public interest. Seal hunting was a matter of public interest at that time, and Bladet Tromsø had reported on the matter in a balanced way, collating views of different actors. Referencing Jersild v. Denmark ECtHR  15890/89, the Court noted it was not to substitute its own judgement for those of the press in matters of journalistic methodology. The purpose of the publication was also clearly to stir debate on improving the seal hunting industry.
The Court also noted that when sanctions can have the effect of dissuading press participation in matters of public interest, the Court has a duty of careful scrutiny.
Furthermore, the press has attendant duties under Article 10 like respecting the rights and reputation of others (protected by Article 17, ICCPR), and respecting the rights of persons to be presumed innocent until proven guilty (Article 6 § 2, ECHR). This can be assessed by the good faith with which the press acts to verify information and abide by journalistic ethics. Here, the newspaper conveyed facts from the Lindberg report and not value judgements. However, the report was not verified. The Court found this departure from the duty of verification justified based on two criteria:
In light of these reasons, the Court concluded that Bladet Tromsø had acted in good faith, and that the right to reputation of the crew members did not supersede the public interest involved in starting a debate on a matter of local, national and international importance. Since the reasons were not “sufficient”, the interference was considered disproportionate and not necessary for a democratic society. The Court accordingly awarded just satisfaction to the applicants.
Joint Dissenting Opinion of Judges Palm, Fuhrmann and Baka
The dissent found that there was no violation of Article 10. The dissenting judges noted that this was a case where a balance had to be struck by a newspaper between its public watchdog function and its duty to respect the right to reputation of “identifiable private individuals” [p. 40]. Public interest was not to be grounds for exemptions from journalistic ethics or defamation laws.
In this case, there was no suppression by the government, or general claims, but rather a group of private individuals who were not subject to the same spectrum of criticism as public figures. The finding of guilt for Mr. Lindberg, as well as the conclusions of the Commission of Inquiry justified the ruling of the District Court in regards to the applicants. This was compounded by the fact that the whole crew was implicated in the allegations, and that the Norwegian law on defamation adequately balanced public and private interests.
The dissent further criticized the court’s two-part test for determining when the duty of verification can be evaded. On the first point, the dissent believed it was essentially a question for domestic courts. On the second point, the dissent pointed out that Bladet Tromsø had been aware that the report was withheld because of unverified allegations as to criminal conduct. Since the report had not been published by the Ministry, the newspaper should have checked its veracity before publication. The dissenting judges noted the complete absence of efforts from Bladet Tromsø to authenticate the allegations in the report, and complete lack of regard for the reputation of the crew members. Thus, the dissenting judges found that Article 10 had not been violated because while it protects the right of the press to exaggerate and provoke, it does not allow them to “trample over the reputation of private individuals” [p. 47].
Dissenting opinion of Judge Greve
Judge Greve disagreed with the majority on its finding of a violation of Article 10. This decision was principally based on the right of the accused crew members to be presumed innocent until proven guilty. Bladet Tromsø had no disclaimer protecting this right.
Furthermore, Judge Greve was of the opinion that omitting information that helped identify the crew of the Harmoni would not have detracted from the newspaper’s freedom of expression. Finally, there were sufficient indications of Mr. Lindberg’s poor professionalism and conflict of interest, to throw into question the credibility of his report.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is important for offering an expansive protection to the freedoms of the press. Of note is the recognition of the public watchdog function of the press, in addition to the right to exercise a degree of exaggeration or provocation. Significantly, the majority in the Court acknowledged that it should not substitute its views on journalistic judgement for those of the press. However, both dissents appear to offer views that do in fact substitute the journalistic calls of the judges for those of the press.
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