Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The European Court of Human Rights (ECtHR) held that insinuation alone can constitute defamation. In deciding what degree of insinuation amounts to defamation, domestic courts must strike an appropriate balance between the articles within the European Convention on Human Rights, specifically article 10, Freedom of Expression, and the article 8, Right to Private Life, including a right to reputation.
Salumäki is a journalist who works for the newspaper Ilta-Sanomat. The paper published an article written by Salumäki concerning an investigation into a homicide. The front page of the newspaper carried a headline asking whether the victim of the homicide had connections with “K.U.”, a well-known Finnish businessman. A photograph of K.U. appeared on the same page. K.U. had been previously convicted for certain economic crimes and there was a separate column next to Salumäki’s article that mentioned these crimes.
K.U. filed suit and the Helsinki District Court convicted Salumäki and Ilta-Sanomat’s editor-in-chief of defamation because the title of the article insinuated that K.U. had been involved in the killing. However, this conviction was solely based on insinuation since the text of the article (as opposed to the title) made clear that K.U. had no connections to anyone involved in perpetrating the homicide (he only had connections to the victim). Salumäki and the editor-in-chief were ordered to pay damages and costs to K.U. The District Court judgment was upheld on appeal and the Supreme Court refused leave to appeal.
Salumäki then filed the present application with the ECtHR, complaining that the domestic courts’ decisions amounted to a violation of her article 10 right to Freedom of Expression. She argued that the information presented in the article was correct and that the title of the article only connected K.U. to the victim and did not insinuate that K.U. had connections with the perpetrator, nor did it insinuate that he was involved in the homicide.
The ECtHR sought to determine whether the domestic authorities struck a fair balance when protecting two rights enshrined in the European Convention on Human Rights (the Convention) which have the potential to conflict with one another. Namely, the freedom of expression protected by article 10 and the right to private life, including the right of reputation, enshrined in article 8. The Court applied the criteria developed by the Grand Chamber in Axel Springer Verlag and Von Hannover in order to determine the appropriate balance between the rights protected by these articles.
The Court emphasized that the criminal investigation into a homicide was clearly a matter of legitimate public interest, giving particular regard to the serious nature of the crime: “From the point of view of the general public’s right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds for reporting the matter to the public.” The Court recognized that “the article was based on information given by the authorities and [the photograph used in the article was] taken at a public event,” thus “the facts set out in the article in issue were not in dispute even before the domestic courts.” The Court further noted that “[t]here is no evidence, or indeed any allegation, of factual errors, misrepresentation or bad faith on the part of [Salumäki].”
Nevertheless, the decisive factor in this case was that, according to the domestic courts, the title of Salumäki’s article created a connection between K.U. and the homicide by implying that he was involved in the criminal matter. Even though it was specifically stated in the text of the article that the homicide suspect had no connections with K.U., this was only stated near the end of the article. The Court concluded that Salumäki must have considered it probable that her article contained a false insinuation and that this false insinuation was capable of causing suffering to K.U.
The Court referred the principle of presumption of innocence under article 6 § 2 of the Convention and stated that the principle remains relevant in situations in which nothing is clearly stated but only insinuated. The Court reasoned that Salumäki owed K.U. that presumption in her journalistic work and found that her implication that K.U. was responsible for the murder was defamatory: “[I]t amounted to stating, by innuendo, a fact which was highly damaging to the reputation of K.U.” Salumäki never attempted to prove the truth of the insinuated fact, nor did she plead that the insinuation was a fair comment based on relevant facts. In light of the foregoing factors, the ECtHR found that the domestic courts struck a fair balance between the competing interests at stake, and accordingly, there was no violation of article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Article 10, Freedom of Expression is not unlimited, especially when balanced against competing ECHR Articles. In this instance, the right to private life (article 8) is interpreted to include a right to guard one’s reputation and is balanced against freedom of expression (article 10).
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.
This case puts ECHR Member States on notice that freedom of expression (article 10 of the Convention) is not unlimited, especially when balanced against competing ECHR articles. In this instance, the right to private life (article 8) is interpreted to include a right to guard one’s reputation and is balanced against freedom of expression (article 10).
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