Content Regulation / Censorship, Protection of Sources, Defamation / Reputation
Marena v. Auler
Closed Contracts Expression
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The European Court of Human Rights found that the courts in Iceland had violated a controversial media personality’s right to a private life by rejecting his defamation claim against an internet user who called him a “rapist” online. The case concerned a well-known blogger, writer and media personality who had been accused by a woman of rape. One week after the rape case against him was dismissed, an Instagram user published a modified image of the media personality with the caption “[f]uck you rapist bastard”. The national courts refused to find the Instagram user liable for defamation because his statement, in context, amounted to a value judgment. The European Court of Human Rights disagreed with the approach of the national courts, stating that the national courts had failed to strike a fair balance between the media personality’s right to respect for his private life and the Instagram user’s right to freedom of expression. The European Court of Human Rights took particular issue with the domestic courts’ classification of the term “rapist” as a value judgment, rather than a statement of fact. As a result, it found a violation of the media personality’s right to respect for his private life under Article 8 of the European Convention on Human Rights.
Egill Einarsson was a notorious writer, blogger and media personality in Iceland. Between 2011 and 2012, he was accused of sexual offences against two women (one of the accusations was of rape). The Public Prosecutor dismissed the cases in November 2012 because of a lack of evidence. Mr. Einnarsson submitted a complaint to the police accusing the women of making false accusations against him. This case was later dismissed.
Following the dismissal of the cases against him, an Icelandic magazine published an interview with Mr. Einarsson. He discussed the rape accusations against him in the interview, and maintained that they were false several times. He also accepted that he had placed himself in the public spotlight, and had to tolerate negative publicity. Nonetheless, he was critical about how the media covered the cases against him. He concluded that he was not seeking to take revenge against his two accusers.
On the same day as the magazine was published, an individual (Mr. X) posted an altered version of a picture of Mr Einarsson on Instagram. The picture was altered to include an upside down cross on Mr Einnarsson’s forehead, and the word “loser” (in Icelandic) was drawn across his face. The photograph also included a small caption across it (in English) that read “[f]uck you rapist bastard”. Mr. X published the picture believing that only his followers could view it. However, the picture of Mr. Einarsson was visible and accessible to other Instagram users.
A few days later, Mr. Einarsson’s lawyer sent a letter to Mr. X requesting that he withdraw his statement, apologize in the media, and pay Mr. Einarsson punitive damages. In his reply, Mr. X apologized but said that the picture was meant to only be shared with a closed group of people and that it was shared by other users without his consent or knowledge.
On 17 December 2012, Mr. Einarsson lodged defamation proceedings against Mr. X before the District Court of Reykjavik. Almost a year later, the District Court dismissed the proceedings. The District Court reasoned that the altered picture, and text, had to be considered in context and as a whole. The District Court found that the picture and the text formed part of a general public debate, and that the plaintiff was a well-known figure who had to accept being subject to public discussion. The District Court noted that Mr. Einarsson himself had participated in the debate. It concluded that the manner in which Mr. X’s words had been presented were more in the form of invective than a factual statement and should, therefore, be considered a value judgment rather than a statement of fact. In light of this, the District Court held that Mr. X had kept within his right to freedom of expression under domestic law.
Mr. Einarsson appealed to the Supreme Court of Iceland. A majority of the Supreme Court upheld the decision of the District Court, stating that Mr. X’s statements had been within the acceptable bounds of freedom of expression. The Supreme Court found that Mr. X had published the relevant picture and text, since he made it accessible to a large number of people (irrespective of whether they were his friends or acquaintances). The Supreme Court noted that Mr. Einarsson was a controversial figure, who had made public statements in the past directed at named individuals (often women) that could be construed as recommending that those individuals be subjected to sexual violence. The Supreme Court also noted that Mr. Einarsson had instigated a public debate through statements he made in his magazine interview, and should have known that it would result in strong reactions. It went on to say, in relation to the caption, that “[a]lthough it can be agreed that by using the term ‘rapist’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set […]. If the altered picture and the comment ‘Fuck you rapist bastard’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed.” [para. 47]
Mr. Einarsson filed an application to the European Court of Human Rights claiming that his right to respect for his private life had been violated by the Supreme Court judgment. Mr. Einarsson argued that Mr. X had accused him of raping a specific person, even though Mr. X knew that the case against him had been dismissed by the prosecutor. He maintained that the Supreme Court judgment meant that he could be called a “rapist” without having been charged with or convicted with such a crime, and without him being able to defend himself. The Government of Iceland replied that the domestic authorities acted within their margin of appreciation by concluding that the statement had been a value judgement with regards a topic of public debate.
The European Court of Human Rights (Court) found that the domestic courts had failed to strike a fair balance between the right to respect for private life under Article 8 of the European Convention of Human Rights (Convention) and the right to freedom of expression under Article 10 of the Convention.
The Court assessed whether the domestic courts had balanced the two rights at stake by considering the following criteria.
How well-known was Mr. Einarsson, the subject matter and Mr. Einarsson’s conduct prior to the publication of the impugned statement
The Court noted that the domestic courts took into account the prior conduct of Mr. Einarsson, including controversial statements he made in the past towards women and sexual freedom, and the fact that he was a well-known figure. The Court agreed with the domestic courts that the limits of acceptable criticism were wider in the present case than in the case of an individual who was not well-known. The Court, however, clarified that even well-known individuals have a “legitimate expectation” of protection of their private life within the meaning of Article 8 of the Convention.
Contribution to a debate of general interest
The Court agreed with the domestic courts that “in the light of the fact that the applicant was a well-known person and the impugned statement was part of a debate concerning accusations of a serious criminal act, it was an issue of general interest.” [para. 45]
Content, form and consequences of the impugned publication
The Court found no reason to disagree with the domestic courts that the picture was accessible to the general public, and therefore amounted to dissemination under defamation law. In this vein, the Court reiterated that the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information, but poses a risk to the enjoyment of human rights that is higher than the risk posed by the press.
The Court then went on to consider what it called the “crux” of the matter, the domestic courts’ assessment of whether the statement “[f]uck you rapist bastard” had been a statement of fact or a value judgment. The Court reiterated that the classification of a statement as a fact or as a value judgment was a matter that normally fell within the national authorities’ margin of appreciation, but the Court could make its own assessment of the impugned statements when it considered it necessary. The Court reasoned that the term “rapist” is objective and factual in nature, since it directly refers to someone as having committed the criminal act of rape. The Court stated that the veracity of an allegation of rape can be proven. The Court was careful to clarify that it would not exclude the possibility that an objective statement of fact, like the one in the present case, could, contextually, be considered a value judgment. However, the contextual elements must be “convincing in the light of the objective and factual nature of the term ‘rapist’ taken at face value.” [para. 50]
The Court criticized the Supreme Court for relying primarily on the “ruthless debate” that Mr. Einarsson “instigated” as the context for the statement, and failing to take adequate account of the chronological link between the publication of the post and the discontinuance of the criminal proceedings against Mr. Einarsson. These criminal proceedings were deemed to be the factual context in which the statement occurred.
The Court went on to clarify that even if the statement was considered a value judgment, the Supreme Court failed to sufficiently explain the factual basis that could have justified the use of the term “rapist” as a value judgment. The Court concluded that “Article 8 of the Convention must be interpreted to mean that persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts.” [para. 52]
The Court held that the picture with its caption was of such a serious nature that it caused prejudice to Mr. Einarsson’s enjoyment of the right to respect for his private life. Therefore, there had been a violation of Article 8 of the Convention.
Dissenting opinion of Judge Lemmens
In his Opinion, Judge Lemmens dissented on the basis that although the classification of the impugned statement as a value judgment or factual statement was relevant, it was not decisive. He opined that the primary consideration for the Court was whether the national courts struck a fair balance between Mr. Einarsson’s right to respect for his private life and Mr. X’s freedom of expression. He concluded that such a balance had been struck, and there was no “cogent reason” for the Court to depart from the assessment of the domestic courts. Most notably, he indicated that domestic judges were often better placed to assess the meaning of a given word in a certain context.
Dissenting opinion of Judge Mourou-Vikström
Judge Mourou-Vikström was unable to find that there had been a violation of Article 8 of the Convention. She opined that Mr. Einarsson’s personality and past remarks needed to have been taken into consideration when looking at the context of the impugned statement. She noted that Mr. Einarsson had “put himself in a position in which the impugned term of ‘rapist’ could be used to describe him, no longer as an allegation of a specific fact but as a value judgment.” [p. 21] She concluded that the public, controversial and provocative statements that were made by Mr. Einarsson in the past shifted the boundary between an allegation of fact and a value judgment and, therefore, the domestic courts were entitled to reach the decision that they did.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment contracts freedom of expression by finding that an individual’s right to respect for their private life had been violated by the rejection a defamation claim over him being called a “rapist” online. The European Court of Human Rights (Court) reached this decision despite the fact that the domestic courts attached particular weight to the fact that the individual had made derogatory statements against women in the past, and was a well-known figure who was the subject of a debate of public interest. Perhaps most concerning is the Court’s failure to take into account the nature of online content, and how statements are often perceived by users online. This observation was conspicuously missing in the Court’s judgment, but has been made in other decisions of the Court. For example, in Tamiz v. United Kingdom, the Court recognized that it is common for online communication to be on the “lower register of style”. The Court noted that some of the specific and potentially injurious allegations made against the applicant in that case would, in the context, “likely be understood by readers as conjecture which should not be taken seriously.” [para. 81] The judgment also fails to adequately recognize that domestic judges are best place to assess the meaning to be attributed to certain statements in their social and cultural context.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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