Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
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The European Court of Human Rights held that there had been a violation of the Applicant’s right to freedom of expression and reversed the Supreme Court of Iceland’s imposition of fines against the editor of a web-based media site for alleged defamation against a public figure. The Court found that although the statements did cause harm to A’s reputation and that editors could be held liable under domestic law, the restriction was not necessary in a democratic society and could have a future chilling effect. The Court considered that the Applicant acted in good faith and made sure that the article was written in compliance with ordinary journalistic obligations to verify a factual allegation. The Court concluded that the Supreme Court had failed to give due consideration to the principles and criteria in balancing the Article 8 right to respect for private life, including reputation, and the right to freedom of expression under Article 10. It therefore had exceeded the margin of appreciation afforded to Member States and failed to strike a reasonable balance of proportionality between the measures imposed, restricting the applicant’s right to freedom of expression, and the legitimate aim pursued.
This case involved an application against the Republic of Iceland lodged with the Court by the applicant claiming that the Icelandic Supreme Court’s judgment of 21 February 2013 had entailed an interference with his Article 10 right to freedom of expression that was not prescribed by law and not necessary in a democratic society.
The applicant was the editor of Pressan, a web-based media site. In November 2010 two sisters published an article about a candidate in an upcoming Constitutional Assembly election (referred to by the Court as “A”) alleging that A had sexually abused them when they were children. The website Pressan reported on the allegations of the sisters, comments from A rejecting the allegations, settlement negotiations, and other news related to the events.
In April 2011, A lodged a formal complaint against the Applicant in the Reykjavik District Court for defamation and requesting removal of certain statements on the website. As the author of the articles was not identified, A argued that, under the Icelandic Printing Act, the liability lay with the Applicant for the allegedly defamatory statements. During the proceedings the author of the articles was identified (“B”), but was not involved further in the proceedings. The sisters stated they were quoted correctly and B stated he had tried to contact child services to ascertain the veracity of the statements with no success. Further, they said that A had not initiated defamation proceedings against them despite threatening to do so if they didn’t settle. In February of 2012, the Court found in favor of the Applicant, ruling that the Applicant could not be liable for the sisters’ direct quotes nor paraphrased quotes or statements that were of a general nature and did not directly refer to A.
A appealed to the Supreme Court, which partially overturned the lower court finding that some of the impugned statements were defamatory and ordered the Applicant to pay fines and costs totaling over 8,000 euros for non-pecuniary loss and declared the statements null and void under the Penal Code.
The Court found a violation of Article 10.
The parties agreed that the Supreme Court judgment constituted an interference with the Applicant’s right to freedom of expression under Article 10.1 so the Court was required to determine whether the interference “was prescribed by law”, “pursued a legitimate aim” and was “necessary in a democratic society” under Article 10.2.
The Applicant argued the interference was not prescribed by law as there was no legal provision attaching liability to an editor of a web-based media site. The Government countered that liability can be attached through the general provisions of the penal code. The Court noted that “prescribed by law” does not require a specific provision and that “law” can include the written law and the law as interpreted by the Courts. Further, taking into account the nature of the editorial activity in question, that the liability was foreseeable to the Applicant, and that the judgments of the Supreme Court were the ultimate interpreter of domestic law, the Court found that the Applicant’s liability was prescribed by domestic law within the meaning of Article 10. 2 of the Convention.1`
As for whether the interference was necessary in a democratic society, the Applicant argued that these statements had been directed at a public figure, concerned matters in the public interest, the information had been reported in good faith, and was available from other news outlets. The Government argued that the restriction related to a pressing societal need, which was the protection of the reputation of A, which was proportionate to the fines imposed (which were awarded under the Tort Act, not the criminal code). The Court noted that the principles underlying questions of law for such cases were well defined in the Court’s case law and, when balancing an applicant’s right to freedom of expression with the privacy interests of the opposing party, the Court looks to several factors including: “the contribution to a debate of general interest; how well known is the person concerned and the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanctions imposed.” [para. 48]
The Court did not question the lower court’s determination that the statements were defamatory or that the reasons relied on by it had the legitimate aim of protecting the privacy and reputation rights of A. It therefore went on to look at whether those reasons were sufficient to satisfy Article 10. The Court noted that this concerned a person in the public interest and about a topic the public had a legitimate interest in being informed about. The Court accepted that the journalist acted in good faith and properly in attempting to ascertain the veracity of the statements involved (interviewing the sisters and family members and unsuccessfully attempting to interview child protection services). A was also offered an opportunity to comment on the allegations. In these circumstances, and being aware that the Applicant was the editor, not the journalist, the Court considered that the Applicant acted in good faith and made sure that the article was written in compliance with ordinary journalistic obligations to verify a factual allegation. Although the Court noted that the statements did cause harm to A’s reputation, the statements came from an outside source (the sisters) and A’s rights could have been protected if he had initiated defamation proceedings against the sisters. The Court found it significant that, instead of doing this, A opted to bring an action against the Applicant. The Court also noted that although the fines may not have been that high and no criminal sanctions imposed “[a]ny undue restriction on freedom of expression effectively entails a risk of obstructing or paralyzing future media coverage of similar questions.” [para. 61]
In these circumstances and for these reasons, the Court 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.
This case expands expression by explicitly recognizing the important function served by the press and that obstructing that function, even with the imposition of minimal fees and without criminal sanctions, can have a chilling effect on the free flow of ideas in the marketplace.
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 upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
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