Case Summary and Outcome

The European Court of Human Rights held that a Finnish journalist’s criminal conviction for publishing a series of articles regarding a case of possible medical negligence due to alcohol intoxication violated Article 10 of the European Convention of Human Rights. A Finnish publication had published three articles which discussed the death of a patient, allegations that the unnamed surgeon had been drunk, and general comments on the need for surgeons and pilots to be sober when working. The Finnish Courts had convicted the journalist on two counts of defamation, finding that the surgeon was identifiable and that the allegations had not been proven and so diminished the surgeon’s honor and reputation. The European Court of Human Rights came to the opposite conclusion, finding that the journalist had not acted mala fide and had not violated any journalistic ethics, and so the conviction and sentence was not necessary in a democratic society.

Facts

In 1996, Seija Selistö a Finnish journalist at the regional daily Pohjalainen in Vaasa, Finland, published a series of articles describing allegedly unprofessional behavior of an unnamed surgeon, X, which reportedly had caused the death of a patient in the Seinäjoki Central Hospital on December 7, 1992. The alleged malpractice took place in a surgery which led to the death of the patient, Mrs. Haapalainen. The patient’s widower, Mr. Haapalainen, had filed a criminal complaint against X and alleged that X was under the influence of alcohol while operating on his wife and that such influence affected his ability to carry out the surgery. The National Medico-Legal Board considered no causal link could be established between the injury and the conduct of X, since it was impossible to pinpoint at what stage of her operation Mrs. Haapalainen had suffered the injury leading to her death. The Central Criminal Police had conducted a pre-trial investigation into the death and in April 1994, the Vaasa County Prosecutor decided not to press charges against X, as they could not find evidence that he was guilty of negligence or involuntary manslaughter.

On January 4, 1996, Selistö published the first article, titled “If only I could get a good grip on life again”. It contained an interview with Mr. Haapalainenm, with a picture and text that read “How is it possible that a surgeon is allowed to conduct surgery with alcohol in his blood – is it not a fact that pilots only get to maneuver a plane when they are absolutely sober, wonders Jorma Haapalainen, who lost his wife” [para. 11]. The front page carried a picture of the couple and text that read: “Jorma Haapalainen, a father of two in Old Vaasa is trying to get a grip on his life again …a Seinäjoki surgeon cost the life of [his] wife”.

On January 9, 1996, Pohjalainen published Selistö’s second article titled “A position of responsibility never goes with alcohol” which contained interviews with the Chief Physician of the Helsinki University Hospital and a Chief Controller of Finnair who stated “the need for surgeons and pilots to be sober and otherwise in an appropriate condition to perform their tasks” [para. 12]. The article made no direct reference to the previous article, the Haapalainens or X.

On February 27, 1996, Selistö’s’s third article was published, titled “The case of Eeva did teach us something”. The article cited extracts from statements by hospital staff given during the pre-trial investigation of X. The statements included declarations from the staff in which they said X had alcohol-related issues at work and described that he would often have a “visible hangover, which showed in his not being neatly dressed, in his reddish and swollen face, in his shaking hands, and in his breath which smelled freshly of alcohol” and that “patients operated on by surgeon X have suffered more from post-operative complications” [para. 13]. Selistö noted that the staff’s statements could be found in the pre-trial record of the Central Criminal Police and could be cited in the newspaper as the record was a public document. The article included a section called “Dubious appointment” which described certain hesitations that preceded X’s appointment in 1990 and another section, “The best interests of the patient seem to have been forgotten”, which stated that the pre-trial records reflected “the collegiality within the medical team as shown in a wish to cover up a colleague’s clear problem” [para. 13]. The article also included a series of statements by chief physicians and chief surgeons of four central university hospitals that a drunk, ill, or just tired surgeon should not be allowed to operate and a statement by the Chief Physician of the Seinäjoki Hospital that X was prohibited from operating for two years after Mrs. Haapalainen’s death, and was then required to perform a breathalyzer test.

The public prosecutor, joined by X, filed two charges of intentional defamation against Selistö in the Vaasa District Court. Chapter 27, section 1, of the Penal Code states that “a person alleging, contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation, unless he or she could show probable cause in support of the allegation” [para. 31]. However, chapter 24, section 9, subsection 2 of the Penal Code, as amended by Act no. 531/2000, “provides that where criticism is aimed at the conduct of another person in his or her political or business activity, public office or function, scientific, artistic or other comparable public activity, and where this criticism clearly does not exceed the limits of acceptable conduct, it shall not be considered defamation within the meaning of subsection 1” [para. 32]. Selistö denied both charges, arguing that X could not be identified based on her articles and that she had not even been aware of his identity when writing her first article. Selistö was convicted based on the February 27, 1996 article and sentenced to 25 daily income-based fines at the rate of 166 Finnish Marks (FIM), the equivalent of EUR 698.

Selistö appealed the judgment, and on May 26, 1999, the Vaasa Court of Appeal held that Selistö was guilty of continued defamation “despite better knowledge” and by using a printed matter. Her sentence was increased to 50 daily fines, totaling FIM 8,300 (EUR 1,396). The Court of Appeal held that the allegations against X had defamed his honor and diminished his social status and professional prospects.

On October 18, 1999, the Supreme Court refused Selistö’s appeal. On March 22, 2001, the Deputy Parliamentary Ombudsman responded to a petition by Mr. Haapalainen. The Ombudsman stated that a conclusion contrary to the preliminary investigation would have been more justified but it should preferably be examined by a court of law.

On April 9, 2000 Selistö applied to the European Court of Human Rights arguing that her conviction violated Article 10 of the European Convention of Human Rights (ECHR).  Article 10 states: ““1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Decision Overview

The Court delivered a majority decision of six to one. The main issue for the Court’s determination was whether the conviction and sentence for defamation was a violation of Article 10, and in particular whether the reasons given by the Finnish authorities in justification were relevant and sufficient.

Selistö argued that the articles raised the circumstances of the death of a patient, possibly from gross medical negligence which was a matter of public interest. She submitted that she had concealed the surgeon’s identity and that X was given the opportunity to comment on the articles. Selistö argued that the sanction was disproportionate and was likely to generate a chilling effect on journalism.

The Finnish Government argued that the interest in protecting X’s reputation outweighed Selistö’s right to freedom of expression. The State submitted that even though Selistö discussed the general problem of ensuring that surgeons did not operate on patients when intoxicated, she had focused on a specific case rather than address the broader healthcare issue and it could therefore not be seen as a contribution to public discussion. The State highlighted that X had never been “convicted or even officially accused of any wrong-doing” and maintained that although X was not identified by name the articles contained sufficient detail for him to be identified [para. 39]. It also argued that Selistö had not included that the National Medico-Legal Board had found no wrongdoing in this case and had not sufficiently provided X with a right of reply or to verify the facts in the articles.

The Court highlighted the essential function the press fulfilled in a democratic society and reiterated that while the press must not overstep certain bounds “its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest” [para. 48]. The Court emphasized that the national margin of appreciation is limited by “the interests of a democratic society in enabling the press to exercise its vital role of ‘public watchdog’ by disseminating information of grave public concern” [para. 49]. The Court referred to its cases of Handyside v. the United Kingdom and Jersild v. Denmark to underscore that not only do journalists have the task of transmitting information and ideas, but the public has a right to receive them. However, this freedom is subject to specific restrictions, which must be analyzed in light of the test of “necessity in a democratic society” which requires that the Court ascertain whether the “’interference’ complained of corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient”, as set out in the case of Sunday Times v. the United Kingdom [para. 47]. The Court emphasized the need to assess the proportionality of measures taken against journalists, particularly when those measures are “capable of discouraging the press from disseminating information on matters of legitimate public concern” [para. 53]. The Court also noted that Article 10 of the ECHR is not absolute as it imposes “duties and responsibilities” on the press, including when an individual’s reputation is at stake and referred to the case of Fressoz and Roire v. France in stating that “the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism” [para. 54].

In applying the principles to the present case, the Court found that it was not necessary to determine what a reasonable reader would have interpreted from the articles as its responsibility was to “determine whether, considering the impugned articles in the wider context of the Pohjalainen’s coverage as a whole, the measures applied by the Court of Appeal, including the award of damages, were proportionate to the legitimate aim pursued” [para. 58].  According to the Court, the purpose of Selisto’s articles was to examine the general problem of alcohol consumption while working, “which is obviously of great public concern” [para. 52]. The Court deemed it was only natural Selisto had chosen an individual case to illustrate a broader health care issue and thus raised serious concerns relevant to the public interest. In the Court’s opinion, given that much of the article’s content derived from official sources, Selisto had no duty to verify the statements. The Court stated that the media must have unrestricted ability to report events based on official references’ information. In addition, the Court reiterated that journalistic freedom also covers possible recourse to a degree of exaggeration or even provocation as established in its case of Prager and Oberschlick v. Austria.

Regarding the protection of X’s identity, the Court believed that at no point was X’s name, age, or gender mentioned in the articles and so he was identifiable only to relatively few readers. The Court also found that there was no justification to hold that X was not given a chance to defend himself or that the ethics of good journalism had been violated, considering that although X had not been given the opportunity to comment before publication, there had been some chance afterward.

Finally, the Court held that the domestic courts’ findings were insufficient to justify the conviction. It found that factual statements contained in the articles were not excessive or misleading and that there was no indication that Selistö had acted mala fide.

In conclusion, the Court was unable to find that X’s interests in protecting his professional reputation were sufficient to outweigh important matters of legitimate public concern. The Court held that the sanctions imposed by the State were not “necessary in a democratic” society. As a result, the Could held that the fines imposed on Selistö violated her right to freedom of expression under Article 10 and awarded Selistö EUR3,500 for pecuniary damage and EUR5,000 for non-pecuniary damage, as well as costs of EUR15,000.

Judge Nicholas Bratza provided a dissenting opinion. He criticized Selistö’s selective inclusion of facts from the public record and described X’s ability to respond to the allegations as “somewhat limited” [p. 27]. He accepted that individual cases can be used in discussions about general problems, but stated that “the present case involved serious allegations against an identifiable individual” which meant that the Finnish Courts had been “entitled to conclude that the necessary care had not been shown” [p. 28]. Judge Bratza noted his concerns about the use of criminal sanctions but would have held that “neither the conviction of the applicant nor the fine imposed on her could be regarded as disproportionate to the legitimate aim of protecting the rights of others” [p. 28].