Global Freedom of Expression

Salihu v. Sweden

Closed Contracts Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    May 10, 2016
  • Outcome
    ECtHR, ECtHR - non Freedom of Expression and Information article violations
  • Case Number
    App. No. 33628/15
  • Region & Country
    Sweden, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    Criminal Law, International/Regional Human Rights Law
  • Themes
    Public Order
  • Tags
    Public Interest

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Case Analysis

Case Summary and Outcome

The European Court of Human Rights held that an application by Swedish journalists who had been convicted of buying an illegal firearm was manifestly ill-founded and that their conviction did not violate the right to freedom of expression. The journalists had bought the weapon for an article illustrating how easy it is to buy weapons in Sweden, and had published photographs of the purchase and of the weapon. The Court found that while the article was undoubtedly in the public interest, the journalists need not have gone so far as to actually make the purchase.


Facts

The three applicants are the editor in chief, news editor and a journalist working for a popular tabloid newspaper in Sweden. In the wake of several shootings, the editor in chief decided to do a piece on how easy it was to obtain weapons in Malmö, a large city in southern Sweden. The journalist was assigned to buy an illegal firearm. At the time of the sale, the news editor listened in on the transaction via mobile phone, in order to ensure the transaction was as safe as possible, and a photographer took pictures of the exchange. The firearm was then photographed and transferred to a safe box of the hotel they were staying in, and the journalists called the police to collect it. The police arrived about thirty minutes later to collect the firearm; the next day, the journalists published the piece in the newspaper. 

Subsequently, the authorities opened a preliminary investigation against the journalists for violations of the Weapons Act. The journalists did not contest the facts but argued they should be exempt from prosecution because their actions served the public interest. However, the prosecutor went forward with the case and charged the journalists with weapons offenses and incitement to weapons offenses. This was appealed to the Swedish Prosecution Authority. The Deputy Chief Prosecutor rejected the appeal, finding the issue would best be resolved through the courts. This was brought before the Prosecutor General who rejected the application as the Chief Prosecutor had already rejected the appeal.

The case was then brought before the Malmö District Court, which upheld the recommendation of the prosecution and convicted the journalists of weapons offenses. They were fined and given a suspended sentence. The court took into consideration the journalists’ right to freedom of expression under the European Convention on Human Rights as well as under the Swedish Freedom of the Press Act, but found that these considerations were trumped because the journalists were charged with procuring an illegal weapon and not for the publication of their article. The District Court emphasized that the purchase of the weapon “appeared to be premeditated risk-taking to create sensational news“. [para. 17] This was appealed to the Court of Appeals, which upheld the convictions finding that “it had not been necessary for the applicants to complete the purchase of the firearm and to subsequently transport it in order to fulfill their journalistic mission.” [para. 21].

On final appeal, the Supreme Court upheld the convictions. The Supreme Court affirmed that because the journalists had been convicted of purchasing illegal weapons and not the publication of the article, the Freedom of the Press Act did not apply. The Supreme Court further found that on balance, while there was clear public interest value in the issue and in the publication, it had not been necessary for the journalists to purchase the weapon. However, due to the special circumstances involved in the case, the Court vacated the suspended sentences of imprisonment and instead increased the fines for each applicant.


Decision Overview

The European Court of Human Rights unanimously held that the application was inadmissible because the complaint was “manifestly ill-founded”.

The applicants had complained of violations of Article 7 of the Convention, which holds that no-one should be convicted of a crime without there being a clear basis in law, and Article 10 of the Convention, which protects the right to freedom of expression. Specifically, they argued that both the prosecutor’s decision to prosecute and their convictions violated the Convention because they had not intended to commit a crime and the purchase of the weapon had been in the public interest, in the service of journalism.

The Court first dispensed with the alleged violation of Article 7. As regards the decision to prosecute, it was brought outside of the six months’ deadline set for applications to the European Court of Human Rights. As regards the convictions, the Court held that these had been based on legislation which was sufficiently clear and reasonably foreseeable. The Court emphasized that, “however clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen“. [para. 44]

The Court next turned to the alleged violation of Article 10, focusing on whether the journalists’ convictions were necessary in a democratic society. The Court first affirmed the critical role that the press plays in serving as a public watchdog and fulfilling the public’s right to know. However, the Court emphasized that this does not mean that journalists are exempt from conforming to the law. The Court recalled that journalists must act in accordance with the tenets of responsible journalism and elaborated that “[t]he concept of responsible journalism … is not confined to the contents of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.” The Court went on to emphasize that “journalists cannot, in principle, be released from their duty to obey the ordinary criminal law … a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions.” [para. 53]

The Court therefore agreed with the judgment of the Swedish Supreme Court, finding that there was no prosecution for the contents of the article or its publication but rather for a criminal act committed by the journalists. The Court agreed that there is a legitimate state interest in the public safety of its citizens in upholding firearms laws and emphasized that “that the question if it was easy to purchase a firearm could have been illustrated in other ways and that the weight of the journalistic interest did not motivate that an offer to purchase a firearm was carried through.” [para. 57] Additionally, the Court noted that the journalists’ sentences had been reduced by the domestic courts, with the Supreme Court imposing only a fine. The Court found these fines not to be so excessive as to have a chilling effect on the freedom of press.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Contracts Expression

This judgment elaborates on the concept of “responsible journalism” and the requirement for journalists to stay within the law. The Court elaborates that the latter is a very relevant consideration as regards the former, although not decisive. Although the Court takes into account the public interest element in the journalism, it considers that it was not necessary for the journalists to go ahead and actually make the purchase – thereby breaking the law. In doing so, the Court can be criticized for taking an editorial decision and this may have a chilling effect on investigative journalism.

 

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related International and/or regional laws

National standards, law or jurisprudence

  • Swed., Freedom of the Press Act
  • Swed., Constitutional Law on Freedom of Expression
  • Swed., Penal Code, Chapter 5
  • Swed., Weapons Act

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

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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