Date when decision was rendered: 30.8.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1913; R2005/406

Reference to source

Registry of the Supreme Court

Högsta domstolens registratorskontor

Korkeimman oikeuden kirjaamo

Date of publication:

Subject

freedom of expression, freedom of the press, respect for private life, holocaust, limitations of rights and freedoms,
yttrandefrihet, tryckfrihet, respekt för privatliv, judeförintelsen, inskränkningar av friheter och rättigheter,
ilmaisuvapaus, painovapaus, yksityiselämän kunnioittaminen, juutalaisvaino, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

Chapter 24, section 9-1 of the Penal Code; sections 10 and 12 of the Constitution Act

= strafflagen 24 kapitel 9 § 1 mom.; grundlagen 10 § och 12 §

= rikoslaki 24 luku 9 § 1 mom.; perustuslaki 10 § ja 12 §.

ECHR-8; ECHR-10

Abstract

A newspaper had published A's survey of the events in the past year 2000.In one section of the survey A discussed the holocaust and the new rise of the Extreme Right ideology.In this context, A quoted a statement by B which had originally been included in a newspaper report written on the basis of a press release issued by B himself.B had raised the fact that during the Second World War German SS-troops had participated in the battle on the eastern front, successfully impeding the progress of Soviet troops, and that this was "a heroic deed which we shall never forget".When this quotation was taken out of its original context and placed in the context of A's survey, the reader could get the impression that by "a heroic deed" B actually meant the holocaust.B therefore claimed, among other things, that A was guilty of defamation for having spread a false insinuation of B.

In its decision, the Supreme Court recalled that any restriction of constitutional rights must be accurately defined.Freedom of expression may not be limited by interpretation more than is undisputedly prescribed in law.The Court pointed out that the notion of "false insinuation" in the Penal Code is open to interpretation and therefore problematic with regard to limitation of constitutional rights.This being the case, constitutional rights, human rights obligations and the case law of the European Court of Human Rights must be taken into account when interpreting the provision of the Penal Code.In its assessment of the merits, the Supreme Court referred, in particular, to the cases of Jersild v.Danmark (judgment of 23 September 1994, Publications of the European Court of Human Rights, Series A, Vol. 298); Prager and Oberschlick v.Austria (judgment of 26 April 1995, Publications of the European Court of Human Rights, Series A, Vol. 313); De Haes and Gijsels v.Belgium (judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I); Bladet Tromso and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III); and Radio France and Others v.France (judgment of 30 March 2004, Reports of Judgments and Decisions 2004-II).

The Supreme Court noted that an exchange of views in matters of public interest lies at the core of freedom of expression.In carrying out its task, the media has a right to publish even biased and provocative views, and it must also be possible to criticize, even strongly, views presented in public.The Court found that both A's survey and the newspaper report written on the basis of B's press release were inaccurate and confusing to the reader.B's statement reflected understanding and appreciation for some phases in the history of the SS-troops, but it was not possible to assess his opinion on the activities of the SS-troops during the Second World War in general on the basis of the press release or the report.A's comprehensive survey combined and compared various, very different events and quotes.It did not contain exact arguments but was a collection of the author's personal views on society and events in the year 2000.The Court continued that views, especially provocative, concerning the holocaust and SS-troops tend to raise public interest.Considering this, and considering also the style in A's survey and the contents in B's press release, the Supreme Court concluded that it could not be regarded that A's text would contain a false insinuation and that she would thus have committed defamation.

Two concurring justices of the Supreme Court decided the case in A's favour on the ground that both A's survey and B's statement, as originally published in the press release and the newspaper report, were open to interpretation.One partly dissenting justice found that A had deliberately used B's statement in a misleading manner at had thus spread a false insinuation.The character and style of A's text did not justify the deed.

12.4.2007 / 12.4.2007 / RHANSKI