Defamation / Reputation
Afanasyev v. Zlotnikov
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This concerned the conviction for defamation of a journalist and his publishers in relation to allegations by the journalist that a reporter for the Finnish national public service broadcaster had fabricated information in two documentaries. The European Court of Human Rights found that the defamation conviction violated the right to freedom of expression. The Court held that the Finnish courts had failed to strike a fair balance between the right to freedom of expression and the right to reputation, and emphasized the importance of affording a higher level of protection to journalists who comment or disseminate information on matters of public interest.
A Finnish journalist, Mikko Veli Niskasaari, criticized the work of a reporter for Finland’s public service broadcaster and accused him of disseminating false information. The accusation pertained to two documentaries, on mold-infested houses and on the preservation of Finland’s national forests, which the reporter had been involved in. With respect to the documentary on mold-infested houses, Niskasaari had said that the reporter was “a fanatic warrior of the faith for whom facts are just in the way” and accused the reporter of being “caught at cold, intentional lying” [para. 9] Separately, in an article in a weekly magazine, he disputed the percentage of the protected forest area in Finland and said that the reporter had fabricated the figures.
In response to those accusations, the reporter sought the assistance of police in bringing a defamation charge against Niskasaari and the publishing company. When the public prosecutor brought a separate defamation claim against the journalist under Finland’s criminal defamation laws, the reporter joined the complaint. In January 2007, the Espoo District Court of Helsinki dismissed the case on the grounds that the documentaries concerned matters of public interest, and so the threshold for acceptable criticism of the reporter was higher. On appeal, the Helsinki Appeal Court reversed the district court’s judgment. It held that with the exception of misleading information in the context of the documentary on mold-infested houses, there was no evidence to prove the falsity of the reporter’s information. The court also found that different sets of statistics existed with regard to forest areas, and that Niskasaari had no grounds to call the reporter a “liar”. Niskasaari was convicted of defamation and sentenced to 40 day-fines, totaling 240 euros. Niskasaari was also ordered to pay the reporter EUR 2,000 plus interest in damages, and the publisher of the magazine was ordered to pay EUR 4,000 plus interest in damages as well as the reporter’s costs and expenses which totaled EUR 25,500. The Supreme Court refused Niskasaari’s leave to appeal.
The issue at stake before the European Court of Human Rights was whether the conviction was necessary in a democratic society. The Court first recalled its standard of review in cases where there is a conflict between the right to freedom of expression and reputation, noting that it “may be required to verify whether the domestic authorities struck a fair balance” between the two. [para. 48] It recalled that the relevant balancing factors to consider are: “(i) contribution to a debate of general interest; (ii) how well-known is the person concerned and what is the subject of the report; (iii) prior conduct of the person concerned; (iv) method of obtaining the information and its veracity; (v) content, form and consequences of the publication; and (vi) severity of the sanction imposed.” [para. 49]
The Court held that general subject matter of Niskasaari’s comments concerned an issue of public concern because they related to televised documentaries about topics that were of public importance, namely mold-infested houses and forest protection. The Court also took into account that the parties in this case were professional journalists and that the reporter had had the opportunity to reply to the accusations against him. While the veracity of the information provided by the documentaries was in dispute by the national courts, the Court held that the monetary award, amounting to 4,000 Euros in damages and 25,500 Euros in costs and expenses, was very substantial. The Court compared this to compensation awarded to victims of violence and noted, “the maximum compensation afforded to victims of serious violence varies between EUR 3,000 and 5,000 Euros.” [para. 57]
In addition, the Court criticized the Helsinki Court of Appeal for failing to strike a fair balance between the competing rights to freedom of expression and the protection of reputation. It particularly noted the error of not affording a higher level of protection to Niskasaari and his publishing company, holding that “journalists in the position of [Niskasaari] who are disseminating information or commenting on a matter of public interest, as well as their publishers, are to be taken as enjoying a higher level of protection of their freedom of expression under Article 10 than, for example, persons expressing themselves in a private dispute.” [para. 58] The Court also held that the Appeal Court failed to take into account that the reporter himself was a journalist and had engaged in debate on matters of public interest. The Court held that while the reporter was equally entitled to the enjoyment of his honor and reputation, “he could himself expect to be the subject of robust scrutiny, comment and criticism regarding his professional conduct.” [para. 58]
Based on the foregoing factors, the European Court of Human Rights found a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Applying its traditional jurisprudence the Court found that journalists commenting on a matter of public interest should be granted a high level of protection. It also held that where one journalist sues another for defamation, as happened in this case, an even higher threshold applies because journalists have ample access to the media to defend their honor and reputation.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding on parties to the case and set an authoritative interpretation of the meaning and implications of the right to freedom of expression in other European countries.
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