Case Summary and Outcome

On April 16, 2009, the Grand Chamber of the European Court of Human Rights (ECtHR) found that the Norwegian Supreme Court judgment convicting and fining two journalists for publishing photographs of a convicted criminal leaving a court building did not violate Article 10 of the European Convention of Human Rights (ECHR). The case arose after the journalists were charged under a Norwegian provision that made it an offense to photograph defendants in criminal proceedings on their way to or from a court without their consent unless there were special reasons for making an exception. While the journalists were acquitted in the first instance, the Supreme Court, which based its decision on the need to protect privacy and safeguard due process, convicted the applicants and ordered them to pay 10,000 Norwegian kroner in fines with 15 days imprisonment in default.

In its decision, the ECtHR emphasized that since Norway was not in an isolated position concerning the prohibition of photographing charged or convicted persons in connection with court proceedings, it could not be said there was a European consensus to such effect. Thus, the Court granted the competent authorities in Norway a wide margin of appreciation in balancing the conflicting interests. The Court determined that the interests in restricting the publication of the photographs outweighed those of the press in informing the public on a matter of public concern. Further, the Court emphasized that the fact that the photographs portrayed the convict in distress and a reduced state of control meant that the need to protect the her privacy outweighed the need for press freedom.

---

Facts

The first applicant lived in Bekkestua, near Oslo, and worked as Editor in Chief of Dagbladet. The second applicant lived in Oslo and was the Editor in Chief of Aftenposten. Both Dagbladet and Aftenposten were major national newspapers in Norway.

From April 18 to June 15, 2001, the so-called Orderud case, a criminal trial concerning charges against four persons of a triple murder, took place before the Nes District Court. The trial involved a son (A) and his wife (B), the (C) wife’s half-sister, and a (D) friend of the latter charged with the gruesome murder of the son’s parents and sister. Given the significant media interest in the case, special arrangements were made so that the press could follow the trial live from a sports hall acting as a press centre. 

On June 22, 2001, the District Court sentenced A, B, and C to 21 years and D to 2½ years. Shortly after having attended the District Court’s delivery of its judgment, photographs of B were taken outside the courthouse without her consent. The delivery of the District Court’s judgment was broadcast live on TV by two leading national broadcasting companies, the NRK, and the TV2; however, neither contained pictures of B.

Dagbladet and Aftenposten independently reported on the District Court’s judgment and B’s arrest, publishing photographs of her without her consent and despite her lawyer’s attempts to prevent publication. 

On July 6, 2001, B’s defense lawyer reported the applicants and three photographers to the police for violation of section 131A of the Norwegian 1915 Act, which prohibits taking photographs of the convicted persons outside the court building after the proceedings had come to a close.

On October 15, 2003, the Nedre Romerike District Court acquitted the defendants of the charges. As a result, the Public Prosecutor appealed directly to the Supreme Court against the decision.

On March 23, 2004, the Norwegian Supreme Court determined that regardless of the facts surrounding B’s conviction and the media interest that the case evoked, B could not deprive of the protection established in Section 131A. As a result, the Court convicted the applicants of publishing the impugned photographs and sentenced each to pay NOK 10,000 in fines. 

---

Decision Overview

The main issue for the ECtHR to analyze was whether the imposed convictions and fines to the applicants, which constituted an interference with their right to freedom of expression guaranteed under Article 10 of the Convention, were necessary in a democratic society to achieve their legitimate objectives.

The Applicants complained that while weighty countervailing interests existed, they did not counterbalance the interference to their right to freedom of expression or fulfil the necessity test. They contended that there was no sufficient justification for limiting their freedom of expression in the name of privacy, especially because she was a known figure and required no protection of identity. It is to be noted that no other convict objected to such pictures being taken.

In its submission, the Government argued that while the Orderud case had been shocking and subject to great public interest, the photographs in question were of limited public interest. This gave the government a wide margin of appreciation. In the Government’s view, a convicted person, regardless of the seriousness of the crime, had a legitimate right to be protected from being photographed in situations of reduced self-control. The Government also commented on the lack of consent by claiming that any dependency on the consent of the subject would give them a chance to manipulate media coverage to suit their interests. While the Government did not challenge the ECtHR’s power to interpret the pictures in the context in which they were published, it considered that the national Supreme Court was better suited to do so. The primary purpose of including these photographs was to appeal to the emotions of readers, and was considered only a minor infraction of the applicants’ right to freedom of expression.

After reviewing the parties’ submissions, the ECtHR noted that in light of the criteria established in the case of Sunday Times v. the United Kingdom (no. 1), the test of “necessity in a democratic society” required the Court to assess whether the interference corresponded to a pressing social need, if it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it were relevant and sufficient. The ECtHR explained that, in the immediate case, the colliding rights were, on the one hand, the right of the press under Article 10 of the ECHR to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State’s positive obligations under Article 8 to protect the privacy of convicted persons in criminal proceedings and its obligations under Article 6 to ensure a fair administration of justice. 

The Court emphasized that since Norway was not in an isolated position concerning the prohibition of photographing charged or convicted persons in connection with court proceedings, it could not be said that there was a European consensus to such effect. As a result, the Court decided to grant Norwegian authorities a wide margin of appreciation in balancing the conflicting interests.

Given that the Supreme Court had based its decision on the protection of privacy and the need to safeguard due process, the Court considered they were relevant reasons for the purposes of the necessity test under Article 10 § 2 of the Convention.

Regarding whether they were sufficient to trump the right to freedom of expression of the applicants, the Court first noted that Article 10 § 2 of the Convention established that the exercise of the freedom of expression carries with it duties and responsibilities relating to the “right or reputation of others”, which becomes important in the context of the dissemination of photographs revealing personal and intimate information about an individual. In the same vein, it reiterated that, as established in the case of Von Hannover v. Germany, the notion of private life as enshrined in Article 8 of the Convention extends to a person’s identity, such as a person’s name or picture. 

Focusing on the context of the present case, the Court underscored that all three photographs portrayed B in a state of reduced self-control. The Court remarked that such a situation was squarely protected under the second sentence of section 131A(1) of the Norwegian 1915 Act, which established that taking photographs of convicted persons outside the court building after proceedings were prohibited. While the Court noted that the pictures had been taken in a public place and concerned a public event, their publication represented an intrusive portrayal of B, mainly since she had not consented to the taking of the photographs or their publication. Moreover, the Court stated it could not agree with the applicant’s argument that the absence of consent by B was irrelevant, given her previous cooperation with the press. For the Court, B’s situation could not be compared to that of a person who voluntarily exposed herself under her role as a public figure on a matter of public interest. Thus, the Court deemed that “the interests in restricting publication of the photographs outweighed those of the press in informing the public on a matter of public concern” [para. 63]. Additionally, the ECtHR considered that the fines imposed on the applicants were not particularly severe.

In conclusion, the ECtHR found that the Norwegian Supreme Court’s judgment satisfied the restriction on the editors’ right to freedom of expression since the state had acted within the scope of its legitimate margin of appreciation. Thus there was no violation of Article 10 of the Convention. 

Concurring Opinion of Judge Rozakis: 

While Judge Rozakis agreed with the Court’s decision that there had been no violation in the circumstances of the present case, he disagreed with the reliance upon the margin of appreciation. For Rozakis, the “mere absence of a wide consensus among European States concerning the taking of photographs of charged or convicted persons in connection with court proceedings did not suffice to justify the application of the margin of appreciation” [p. 23]. He also called for the reconsideration of the doctrine’s applicability to very limited scenarios where the Court truly believed that local authorities were better placed to assess the circumstances. This was particularly true because the majority at the ECtHR had conducted a detailed analysis of the facts within its own judgement, and hence no such margin of appreciation existed.

Concurring Opinion of Judge Malinveri: 

Judge Malinveri also expressed his reservation with the term “wide” used for the margin of appreciation since there was much variation seen in its scope. He placed specific reliance on two criteria – existence of European consensus and the importance of the right in issue – to then conclude that Norway should have been granted limited margin of appreciation.

 

 

---