Press Freedom, Privacy, Data Protection and Retention
White v. Sweden
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The European Court of Human Rights (“the ECtHR”/”the Court”) found that the State of Finland violated Article 10 of the European Convention of Human Rights (“the Convention”) when it’s national courts ordered the editors and journalists of two magazines to pay fines and damages in the context of criminal proceedings, for publishing news articles mentioning the name and identity of B., the female friend of a well-known public official, and their involvement in a violent altercation. The national courts considered that these articles were an unjustified invasion of B.’s privacy. However, the ECtHR found that the interference with the applicants’ freedom of expression was not necessary in a democratic society, since B.’s identity had publicly been disclosed previously on national television, and the articles in question were of public interest. Hence, the sanctions imposed on the applicants were disproportionately severe.
On December 4, 1996, Finland’s then National Conciliator A., and his female friend B., entered A.’s home late at night. A.’s wife was present which worsened the situation, and led to the calling of the police. This incident, which also involved A.’s grown-up children, resulted in the police arresting A. Subsequently, both A. and B. were criminally charged. On January 16, 1997, the Helsinki District Court convicted “A. to a four-month conditional prison sentence for resisting arrest and for criminal damage, and B. to a fine for assault” [para. 7].
On January 17, 1997, A. was dismissed from his post as National Conciliator by the Council of State. The case against him later lapsed following his death on 14 May 1998. However, the Appeal Court upheld B.’s criminal conviction on June 25, 1998.
On January 31 and March 1, 1997, two nationwide magazines Seura and Nykyposti respectively, published press articles about A. In the first article, based on an interview with A., B.’s name and age were mentioned along with her picture. The article concerned “A.’s feelings about his dismissal and his possible divorce in the aftermath of the incident of 4 December 1996” [para. 8]. The second article was also about A.’s divorce and the aforementioned incident. In that context, B.’s name was mentioned too. A Swedish newspaper and a Finnish nationwide television broadcast had already revealed B.’s identity before the publication of these two articles.
A. and B. requested, in the spring of 1997, to conduct criminal investigations against the journalists who wrote about the incident of December 4, 1996. On November 15, 1999, the public prosecutor brought charges for invasion of privacy against the applicants – Mr. Jouni Mikael Flinkkilä, Ms. Sanna Rakel Wirtavuori — editors-in-chief of Seura magazine and, Ms. Jaana Helena Isosaari, Mr Risto Valdemar Ainasoja — editor-in-chief and a journalist of Nykyposti, “under Chapter 27, section 3(a), paragraph 2 of the [Finnish] Penal Code” [para. 11]. On January 4 and November 10, 2000, in addition to the criminal charges, B.’s compensation claim against all the applicants was accepted.
On December 15, 2000, the Espoo District Court dismissed all the charges. The court found that “the information concerning B.’s private life in the article could not as such be conducive to causing her particular suffering, except for the information concerning her relationship with A. However, since the incident of 4 December 1996 B. must have understood that she could no longer seek protection on this ground” [para. 13]. Since there was no proof to indicate the applicants’ intention of invading B.’s privacy and causing her suffering, the Court also dismissed B.’s compensation claims.
Without holding an oral hearing, the Appeal Court, on May 15, 2003, quashed the District Court’s decision and declared “all parts of the case file secret for ten years except for the applicable legal provisions and the conclusions” [para. 15]. Since the matter was very sensitive and private, it was ordered to not reveal B.’s identity in the judgment’s public parts, which did not violate Articles 6 or 10 of the Convention. The applicants were convicted “to pay twenty day-fines, amounting to 1,180 euros (EUR), EUR 1,100, EUR 1,020 and EUR 120 respectively, for invasion of private life. Moreover, Flinkkilä and Wirtavuori were ordered jointly to pay B. EUR 5,000 plus interest, and Isosaari and Ainasoja EUR 3,000 plus interest for non-pecuniary damage as well as her costs and expenses jointly with the publishing company” [para. 15]. The total sum of fines and compensation paid by the applicants amounted to EUR 22,074.31.
For the Appeal Court, the information mentioned in the articles amounted to a violation of the private life of B. This was supported by an earlier decision of the Supreme Court, pertaining to the Finnish nationwide television broadcast that had aired prior to the publication of the articles in question. In this case, the Supreme Court had declared that the mentioning of B.’s name twice in the context of A.’s interview had violated her privacy. Thus, the Appeal Court noted that simply because she was A.’s friend and was involved in the incident that led to his dismissal, did not justify revealing her identity. The crime in question did not require proof of intent: “it was sufficient that the dissemination of information about the private life of a person was capable of causing him or her damage or suffering” [para. 16].
Since the Appeal Court had failed to give sufficient reasons for many of its findings, the applicants applied to the Supreme Court of Finland for leave to appeal [para. 17]. However, the same was refused by the Supreme Court on January 20, 2004.
The ECtHR analyzed if the State of Finland had violated the freedom of expression of the applicants by criminally convicting them and ordering the payment of damages to B. for publishing news articles which revealed her identity. The main issue before the Court was assessing whether the interference with the freedom of expression of the applicants was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.
The applicants argued that the criminal convictions issued against them were not prescribed by law, did not pursue a legitimate aim and were not necessary in democratic society. According to them, “it had not been clear from the Penal Code provision applied that their conduct might be punishable, as the provision had not defined the scope of private life” [para. 49]. The applicants contested that the provision used to convict them, or the preparatory works for said law, “had not mentioned that the provision would apply to the publication of an accused or convicted person’s name” [para. 55]. Even though from 2002 the Supreme Court had started interpreting the law as that which punished the publication of a convicted person’s name in a newspaper, the applicants could not have reasonably foreseen this in 1997 when the articles were published. The judgments concerning B.’s criminal case had already mentioned her name, and since this was on public record, it was irrational to view such information as private retrospectively [para. 56]. The applicants also argued that since B. actively participated in the December 4, 1996 incident and was subsequently fined, “the public had a right to know about issues of public interest, especially in this type of case where the person concerned had been a defendant in a high-profile criminal case” [para. 49]. All these facts, coupled with the high amount of sanctions imposed on the applicants, they argued had violated their rights under Article 10.
On its part, the Government of Finland argued that the sanctions imposed upon the applicants could be considered as interference with their freedom of expression, but this interference was prescribed by law. Chapter 27, section 3(a) of the Penal Code was the basis of the enacted measures: “At the relevant time the provision had been in force more than 20 years, and it had been interpreted by the Supreme Court […] The rules on criminal liability could thus be regarded as having been gradually clarified through judicial interpretation in a manner which had been consistent with the essence of the offence. The liability therefore could reasonably have been foreseen” [para. 58]. The Government also mentioned the Guidelines for Journalists by The Union of Journalists in Finland, and the practice of the Council for Mass Media (Julkisen sanan neuvosto, Opinionsnämnden för massmedier), to highlight the fact that both “had restricted the disclosure of a person’s name in crime news coverage” [para. 59]. Sentencing B. to a fine in her criminal case could not have allowed the invasion of her privacy. Hence, the measures against the applicants did pursue a legitimate aim, i.e., the protection of B’s private life. Regarding the necessity of the measures in a democratic society, the respondent state argued that B.’s conduct was not a matter of public relevance, and that the articles describing her behavior did not contribute to “any discussion of general interest but had been intended to satisfy public curiosity” [para. 61]. Therefore, according to the Government of Finland, there was no real need in mentioning B.’s name to report on the events of December 4, 1996.
The ECtHR began its considerations by analyzing whether the measures enacted against the applicants were prescribed by law. According to the Court, the criminal provision found in the Penal Code used to convict the applicants, was clearly worded and free of ambiguities (Eerikäinen and Others v. Finland). Hence, “the possibility that a sanction would be imposed for invasion of private life was not unforeseeable” [para. 67]. The Court also noted that the Guidelines for Journalists and the practice of the Council for Mass Media provided a set of rules stricter than those found in the Penal Code, so the applicants being professional journalists, “could not claim to be ignorant about the content of the said provision [in the Penal Code]” [para. 67]. For these reasons, the Court considered that the interference with the applicants’ freedom of expression was indeed prescribed by law, and it also undisputedly “pursued the legitimate aim of protecting the reputation or rights of others” [para. 68].
While analyzing the necessity of the interference in a democratic society, the Court highlighted that journalistic freedom of expression, exercised within permissible limits, is a cornerstone for the development of a democratic society and its individuals. Thus, for the ECtHR, freedom of expression does not exclusively protect “ ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb” [para. 69]. The “necessity” should correspond to a “pressing social need”. In this context, the Court upheld that any interference with freedom of expression must be proportionate to the legitimate aims it pursues, and the national authorities should be able to justify it sufficiently, as emphasized in Sunday Times v. the United Kingdom (no. 1). In the present case, the ECtHR considered that the applicants’ freedom of expression had to be balanced against B.’s private life, as laid down in Article 8 of the Convention.
As decided in Lingens v. Austria, the press is entitled to scrutinize and criticize the actions of a politician more than any other private individual. In cases like Tammer v. Estonia, the Court has often balanced freedom of expression with protection of privacy by considering “the contribution made by photos or articles in the press to a debate of general interest” [para. 76]. Additionally, considering whether freedom of expression is used to report on court proceedings is also a relevant factor, since it contributes to the publicity of hearings.
The Court noted that there was “no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants. Nor is there any suggestion that details about B. were obtained by subterfuge or other illicit means” [para. 81]. At the same time, B.’s status as an ordinary person enlarged her right to privacy that could not be violated simply because she had been subjected to criminal proceedings. Nonetheless, the Court observed that “B. was involved in a public disturbance outside the family home of A., a senior public figure who was married and with whom she had developed a relationship” [para. 83]. Hence, “notwithstanding her status as a private person, [B.] can reasonably be taken to have entered the public domain” [para. 83].
The ECtHR also considered that the articles published by Seura and Nykyposti magazines about the incident of 4 December 1996, focused mainly on A.’s behavior and made no reference to B.’s private life, except for her involvement in the aforementioned incident and her relationship with A., both of which were already publicly known prior to the publication of these two articles. Therefore, “the information concerning B. was essentially limited to her conviction and to facts which were inherently related to A.’s story” [para. 84]. For the ECtHR, B.’s identity and her involvement in the incident of December 4, 1996, “had a direct bearing on matters of public interest, namely A.’s conduct and his ability to continue in his post as a high-level public servant” [para. 85]. The events of 4 December 1996 had culminated in A.’s conviction and dismissal, and B. had willingly played an active role in this incident. Hence, continuing public interest in B. was understandable. The Court further noted that the articles were not the first ones to disclose B.’s identity, since the conviction of A. and B. in context of the December 4, 1996 incident had already been publicly televised.
In light of these factors, the Court found that the sanctions imposed upon the applicants were too severe. The fines and the order “to pay damages jointly and severally in a total amount of EUR 8,000” were deemed drastic by the ECtHR “given that the maximum compensation afforded to victims of serious violence [in Finland] was approximately FIM 100,000 (EUR 17,000) at the time” [para. 89]. Thus, the Court considered that “such severe consequences, viewed against the background of the circumstances resulting in the interference with B.’s right to respect for her private life, were disproportionate having regard to the competing interest of freedom of expression” [para. 91]. This disproportionate interference was not necessary in a democratic society, and hence, the ECtHR upheld the violation of the applicants’ right to freedom of expression under Article 10 of the Convention.
The Court awarded the applicants EUR 22,000 jointly in compensation for pecuniary damage. Moreover, each applicant was awarded, on an equitable basis, EUR 2,000 for non-pecuniary damage. Finally, the applicants were jointly awarded EUR 5,000 for costs and expenses.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By considering that the measures enacted against the applicants were disproportionate, the Court provides a robust protection for press freedom, when in conflict with the right to privacy, in matters of public relevance. Furthermore, by deciding that the pecuniary sanctions were too severe, the Court also expands the scope of freedom of expression by taking into consideration the chilling effect this interference could have on the reporting of issues of general interest in the future.
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