Date when decision was rendered: 5.11.1997

Judicial body: Helsinki Court of First Instance = Helsingfors tingsrätt = Helsingin käräjäoikeus

Reference: Report No. 233; R97/5299

Reference to source

Registry of the Helsinki Court of First Instance

Helsingfors tingsrätts registratorskontor

Helsingin käräjäoikeuden kirjaamo

Date of publication:

Subject

racism, racial discrimination, criminal charge, freedom of the press,
rasism, rasdiskriminering, brottsanklagelse, tryckfrihet,
rasismi, rotusyrjintä, rikossyyte, painovapaus,

Relevant legal provisions

Chapter 11, section 8 of the Penal Code, Act on the Freedom of the Press

= strafflagen 11 kapitel 8 §; tryckfrihetslagen

= rikoslaki 11 luku 8 §; painovapauslaki.

CERD-2-1, CCPR-20-2, CCPR-26, ECHR-14 (no direct reference to either in the judgment)

Abstract

A was charged with incitement to racial hatred for statements included in articles in a sales publication that was publicly distributed.A was editor-in-chief of the publication in question.Out of the 150 copies, about 50 were distributed to book shops, but only 10 were sold.The rest were distributed for free.

In the court of first instance, A's lawyer stated that the allegedly derogatory remarks were placed within quotation marks, indicating that they were not intended as derogatory but to emphasize the situation and invoke a discussion.The notion of obtaining a sort of "final solution", which was included in the text, was intended to imply expulsion, according to A's lawyer.He also stated that A was of the opinion that all races in principle are equal, but that he wanted to bring about a discussion on multiracial societies.The statements were not intentional but ill-considered.During the pretrial investigation, A had admitted that certain statements were ill-considered and stated that he had not used them subsequently.

According to the public prosecutor, A had surely understood that he incited and also intended to incite to violence, hostility and discrimination.

The court of first instance concluded that it had been proven that A had in public by means of his articles in a publication spread statements which threathened, libelled, and insulted groups of black people and refugees who live in Finland by calling them defamatory names and inciting others to take measures that offended the groups' human dignity.A was sentenced to FIM 900 in fines.The chairperson of the court would have dismissed the charges as the statements did not incite to undertake any measures against any groups of people.

17.4.1998 / 31.3.2003 / LISNELLM

Date when decision was rendered: 30.5.1980

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report No. 2487a; 3593-3596/30/78

Reference to source

KHO 1980-A-2.

Yearbook of the Supreme Administrative Court 1980 A, General Part

Högsta förvaltningsdomstolens årsbok 1980 A, allmän del

Korkeimman hallinto-oikeuden vuosikirja 1980 A, yleinen osa

Place of publication: Helsinki

Publisher: The Supreme Administrative Court

Date of publication: 1981

Pages: pp. 47-49

Subject

freedom of the press, trade,
tryckfrihet, handel,
painovapaus, kauppa,

Relevant legal provisions

Section 10 of the Constitution Act; sections 15 and 16 of the Act on the Freedom of the Press Act

= regeringsformen 10 §; tryckfrihetslagen 15 § och 16 §

= hallitusmuoto 10 §; painovapauslaki 15 § ja 16 §

Abstract

Temporary distribution of printed matters was not an activity which, taking into account section 10 of the Constitution Act and the Act on the Freedom of the Press, could be made subject to such authorisation as stipulated in the city ordinance.The sale of such printed matters was therefore not punishable.

The city administrative court of Helsinki was of the opinion that the sale of the printed matters was gainful employment, regardless of the fact whether the persons selling them were paid or not, and that the freedom of the press was not at issue in the case.The sellers A, B, C and D appealed to the county administrative court, which rejected the appeal.

A, B, C and D appealed to the Supreme Administrative Court, which quashed the decision of the lower courts.The Court referred to the fact that the sale had been temporary and not the real profession of A, B, C and D.The sale had therefore not constituted such sale of books as described in sections 15 or 16 of the Act on the Freedom of the Press that required a notification to the authorities.The city ordinance could include restrictions of trade, but not in contravention of the constitutional right guaranteed in section 10 of the Constitution Act of the freedom of the press.The distribution of printed matters by A, B, C and D could therefore not be regarded as such trade or other gainful employment that under the city ordinance required the authorities' permission.

21.4.1998 / 4.4.2003 / LISNELLM

Date when decision was rendered: 31.10.2000

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 3077; R99/1857

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, freedom of the press, respect for private life, respect for family life, doping,
yttrandefrihet, tryckfrihet, respekt för privatliv, respekt för familjeliv, dopning,
ilmaisuvapaus, painovapaus, yksityiselämän kunnioittaminen, perhe-elämän kunnioittaminen, doping,

Relevant legal provisions

Chapter 27, section 2 of the Penal Code

= strafflagen 27 kapitel 2 §

= rikoslaki 27 luku 2 §.

ECHR-10

Abstract

A reporter and an editor-in-chief of the Finnish News Agency had published a piece of news according to which a former top skier, while he was still active, had used hormones in order to improve his performance.They also claimed that "persons in a leading position" within the Finnish Ski Association were involved in the case.The name of the skier was given but not the names of the other persons possibly involved.The skier as well as a number of persons in a position of authority within the Ski Association started legal proceedings against the reporter and the editor, accusing them of public libel and claiming damages.Before the court, the defendants referred to their right as journalists to protect their sources.Partly because of this, they were not able to provide sufficient evidence in support of their claims.They were both convicted.Damages were awarded to all claimants.All the parties in the case appealed against the decision.

In assessing the balance between the freedom of expression and the right to privacy, the Helsinki Court of Appeal referred to Article 10-2 of the ECHR and the possible restrictions of freedom of expression as well as to the decisions of the European Court of Human Rights in the cases of Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999 III) and Ionel Dalban v.Romania (judgment of 28 September 1999, Reports of Judgments and Decisions 1999 VI).The court found that the use of doping in sports is comparable to matters of public interest as specified in the practice of the European Court of Human Rights.With regard to such matters, it could be considered that the freedom of expression covers possible recourse to severe criticism and a degree of exaggeration.However, the conclusion of the court of appeal was that in this case the defendants had not proven the information given in the news to be true, nor had they shown that they had sufficient reasons to believe that the information was true or could be substantiated.The court found the defendants guilty, but mitigated their punishments as compared to those imposed by the court of first instance.In assessing the question of pecuniary damages, the court of appeal referred to the decision of the European Court of Human Rights in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Series A, no. 316-B).As compared to the decision of the court of first instance, the appeal court reduced the amount of damages as well as the number of persons entitled to damages.In addition to the skier, only a few persons within the Ski Association were awarded compensation.

The Supreme Court did not grant leave to appeal in the case.

28.10.2002 / 12.3.2003 / LISNELLM

Date when decision was rendered: 17.11.2003

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report No. 3427; S01/2784

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, respect for private life, freedom of the press,
yttrandefrihet, respekt för privatliv, tryckfrihet,
ilmaisuvapaus, yksityiselämän kunnioittaminen, painovapaus,

Relevant legal provisions

Chapter 27, section 1, 2 and 3a of the Penal Code (908/1974); Chapter 5, section 1 of the Tort Liability Act; sections 10 and 12 of the Constitution Act

= strafflagen (908/1974) 27 kapitel 1 §, 2 § och 3a §; skadeståndslag 5 kapitel 1 §; grundlagen 10 § och 12 §

= rikoslaki (908/1974) 27 luku 1 §, 2 § ja 3a §; vahingonkorvauslaki 5 luku 1 §; perustuslaki 10 § ja 12 §.

ECHR-8; ECHR-10

Abstract

Journalist A had written several newspaper articles in which company X had been connected with suspicions of tax offences.The director of the National Board of Taxation, B, was a shareholder and holder of procuration in the company and the brother-in-law of the principal owners of the company, C and D.The suspicions of tax offences were investigated but no one was charged.C and D claimed that the newspaper articles had violated their honour and privacy and had caused financial damage to the company.They brought an action for damages against the newspaper.The court of first instance ordered the newspaper to pay damages, but the court of appeal quashed the decision.

The court of appeal discussed at length the various aspects of freedom of expression, referring also to the case law of the European Court of Human Rights, including the cases of Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III), Bergens Tidende and Others v.Norway (judgment of 2 May 2000, Reports of Judgments and Decisions 2000-IV), Castells v.Spain (judgment of 23 April 1992, Publications of the European Court of Human Rights, Series A, Vol. 236), Goodwin v. the United Kingdom (judgment of 27 March 1996, Reports of Judgments and Decisions 1996-II), Colombani and Others v.France (judgment of 25 June 2002, Reports of Judgments and Decisions 2002-V) and Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Publications of the European Court of Human Rights, Series A, Vol. 316).Against the background of this discussion, the court concluded that considering B's prominent social position, A had a right perhaps even a duty to write about issues relating to the activities and taxation of company X.

When discussing whether A was guilty of defamation, the court of appeal observed that the articles written by A contained statements which were untrue and gave the reader a wrong impression of the situation.The court found this reprehensible and incompatible with the requirements set for the task of the press as a "public watchdog" in a democratic society.However, in the court's opinion the contents of the articles did not fulfill the essential elements of defamation as defined in the Penal Code.The court found that, on the basis of the evidence presented in the case, there had been reason to believe that tax offences had been committed.Most of the statements in the articles were based on information received from authorities.A's purpose was not to harm the reputation of the company or its owners but to bring out B's connection to, in A's view suspicious, decisions concerning taxation.In the court's opinion, this was a significant matter of public interest and bringing it forth was important.

Regarding the alleged violation of the right to privacy, the court of appeal noted that it was impossible in practice to write about B and company X without disclosing the name of the company, the names of its principal owners or the relationship between B, C and D.As entrepreneurs, C and D had a duty to tolerate publicity and criticism based on facts.The court concluded that the newspaper articles did not amount to a violation of the right to privacy as defined in the Penal Code.

As for negligent causing of damages the court repeated its statement concerning the to some extent untruthful and biased contents of the articles.A was an experienced journalist, and the articles had been published in a most widely-read national newspaper which was generally considered as reliable.The newspaper would have had the means to check the information given in the articles.The court of appeal ruled that A had, by negligence and by acting contrary to good journalistic practice, caused damage to company X.However, in the court's opinion, there were no especially weighty reasons, as required by the Tort Liability Act, to order the newspaper to pay damages.The court pointed out that this was an important matter of public interest, that the main issue in the articles (suspicions of tax offences) was a pertinent one and that the damage caused, as assessed by the court, was not extensive.In the court's view, ordering the newspaper to pay damages would not have led to a fair end result in this case.

The decision is final, as the Supreme Court did not grant leave to appeal in the case (decision of 6 October 2004, no. 2229, S2004/69).In its decision, the court of first instance emphasised the duty of the press to impart reliable and accurate information as well as the right of all parties involved to have their views published.The court found that A had been fully aware that the articles were not completely truthful and that they would harm the company and its owners.Moreover, the court assessed the damage caused as far more extensive than the court of appeal did in its own assessment.

25.4.2005 / 25.4.2005 / ASADINMA

Date when decision was rendered: 12.2.2004

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report No. 511; R02/1938

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, respect for private life, judges, freedom of the press,
yttrandefrihet, respekt för privatliv, domare, tryckfrihet,
ilmaisuvapaus, yksityiselämän kunnioittaminen, tuomarit, painovapaus,

Relevant legal provisions

Chapter 27, sections 1 and 2 of the Penal Code (908/1974); sections 10 and 12 of the Constitution Act

= strafflagen (908/1974) 27 kapitel 1 § och 2 §; grundlagen 10 § och 12 §

= rikoslaki (908/1974) 27 luku 1 § ja 2 §; perustuslaki 10 § ja 12 §.

CCPR-19; ECHR-10

Abstract

A newspaper had published an article which included an interview with X.X had, among other things, been convicted of economic offenses, and at the time of the interview there were two other cases concerning economic offenses pending against him.These facts were mentioned in the newspaper article.In the interview, X told that he had applied for an annulment of a decision of the Helsinki Court of Appeal in one of the cases against him on the grounds that one of the judges who had decided the case should have been disqualified.The judge's name was not mentioned.X claimed that the judge was his enemy because X had on a previous occasion criticised the judge and his actions.X had also told earlier that the judge had taken a bribe by accepting a free luxury trip from a person who was suspected of a bankruptcy offence.In the newspaper article it was mentioned that the judge had wanted to bring charges against X for defamation but the prosecutor had decided not to prosecute.The judge to whom the article referred, A, brought charges for defamation against the newspaper and the journalist who had written the article.The accusations in the article were false.A had not taken the alleged bribe nor brought charges against X.Although the judge's identity had not been revealed in the article, it had become known to some persons at A's workplace at the Helsinki Court of Appeal and this had caused some inconvenience for A.

The court of first instance sentenced the newspaper and the journalist for defamation.In the court's view, a claim that a judge has accepted a bribe was an important matter of public interest which had to be publicized provided that there was sufficient factual basis for that claim.However, in this case the facts had not been checked and A's views had not been heard.The court found that on the basis of the information given in the article and with the help of the registers of the Helsinki Court of Appeal it had been possible for those who worked at the court and also for others interested to identify the judge the article was referring to, and this had caused damage to A.In its decision, the court of first instance referred, among other provisions, to sections 10 (right to privacy) and 12 (freedom of expression) of the Constitution Act, Article 19 of the CCPR and Article 10 of the ECHR.One lay member of the court would have dismissed the charges as being contrary to the freedom of expression, the Constitution Act and the EU Charter of Fundamental Rights.

Both parties appealed to the court of appeal.In its decision, the court of appeal discussed at length the case law of the European Court of Human Rights and in particular the cases of Barfod (judgment of 22 February 1989, Publications of the European Court of Human Rights, Series A, Vol. 149), Jersild v.Denmark (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), Bladet Tromsø and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III), Dalban v.Romania (judgment of 28 September 1999, Reports of Judgments and Decisions 1999-VI), Bergens Tidende and Others v.Norway (judgment of 2 May 2000, Reports of Judgments and Decisions 2000-IV), Colombani and Others v.France (judgment of 25 June 2002, Reports of Judgments and Decisions 2002-V), Pasalaris v.Greece (decision of 4 July 2002), Harlanova v.Latvia (decision of 3 April 2003), Perna v.Italy (judgment of 6 May 2003, Reports of Judgments and Decisions 2003-V), and Cumpana and Mazare v.Romania (judgment of 10 June 2003).The court considered, among other issues, the responsibility of a journalist for statements made by another person in an interview, the duty of a journalist to check the factual basis of the imparted information as well as possible limitations of freedom of expression for maintaining the authority and impartiality of the judiciary.

The court found that the article contained incorrect and offensive information.On the basis of the article a reader could get the impression that the judge in question has possibly broken the law.In writing the article, the journalist had not checked the facts as carefully as he should have considering that the accusations were serious and that X because of his background could not be regarded as a reliable source of information.Although A's name was not mentioned in the article, the journalist should under the circumstances have given A the possibility to present his views.However, unlike the court of first instance, the court of appeal did not find the journalist or the newspaper guilty of defamation.Several cases against X had been decided in the Helsinki Court of Appeal and a number of judges had participated in handling the cases.In the court's opinion, even those close to A could not have identified him on the basis of the information given in the article, especially as some of the information was incorrect.Also, for those who were not close to A, it was not easy to find out the identity of the judge solely on the basis of the information given in the article.The court of appeal dismissed the charges.The decision is final as the Supreme Court did not grant leave to appeal in the case (decision of 3 December 2004, no. 2798, R2004/329).

25.4.2005 / 25.4.2005 / ASADINMA

Date when decision was rendered: 7.1.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 0001; R2004/183

Reference to source

KKO 2005:1.

Decisions of the Supreme Court 2005 I January-June

Avgöranden av Högsta domstolen 2005 I januari-juni

Korkeimman oikeuden ratkaisuja 2005 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2005

Pages: pp. 9-14

Subject

freedom of expression, freedom of the press,
yttrandefrihet, tryckfrihet,
ilmaisuvapaus, painovapaus,

Relevant legal provisions

Chapter 24, section 9 of the Penal Code; section 12 of the Constitution Act

= strafflagen 24 kapitel 9 §; grundlagen 12 §

= rikoslaki 24 luku 9 §; perustuslaki 12 §.

ECHR-10

Abstract

An afternoon paper had published a text in which a journalist criticized a meal he had been served in a restaurant.The writer had used fairly sharp and unpolished language.The question was whether this constituted defamation.The Supreme Court referred to Chapter 24, section 9 of the Penal Code which prescribes, among other things, that criticism that is directed at a person's activities in business does not constitute defamation provided that it does not obviously overstep the limits of propriety.In this case, the writer had expressed his own opinion by using a metaphor which is likely to give the reader a strongly negative impression.However, taking into account the context in which the criticism was presented and the style in the text in general, the use of the metaphor did not give the impression that the writer had considered the meal unhygienic and not fit for food.The text was a humorous essay which had been published in the sports pages together with articles and interviews all dealing with local football, local people and local cuisine.The tone in the writer's criticism of the meal matched the humorous and exaggerating style used in the essay in general.The Supreme Court held that a person engaged in business has to tolerate even sharp public criticism against the products or services his or her business provides.The Court concluded that in this case, the criticism did not obviously overstep the limits of propriety and did not thus constitute defamation.

The Supreme Court decided the case on the basis of the Penal Code only.The court of first instance, which had come to the same conclusion as the Supreme Court, also referred to the freedom of expression as prescribed in the Constitution Act and the ECHR.The court of appeal held that the criticism went too far and the journalist was guilty of defamation.One dissenting member of the appeal court referred to the freedom of expression and the freedom of the press and agreed with the court of first instance.

26.5.2006 / 26.5.2006 / RHANSKI

Date when decision was rendered: 4.7.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 1621; R2003/191

Reference to source

KKO 2005:82.

Decisions of the Supreme Court 2005 II July-December

Avgöranden av Högsta domstolen 2005 II juli-december

Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 585-601

Subject

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

Relevant legal provisions

Chapter 27, section 3a of the Penal Code (908/1974); Chapter 24, section 8 of the Penal Code (531/2000); sections 10 and 12 of the Constitution Act

= strafflagen (908/1974) 27 kapitel 3a §; strafflagen (531/2000) 24 kapitel 8 §; grundlagen 10 § och 12 §

= rikoslaki (908/1974) 27 luku 3a §; rikoslaki (531/2000) 24 luku 8 §; perustuslaki 10 § ja 12 §.

ECHR-8; ECHR-10

Abstract

In the presidential election in 2000, A was a personal assistant to candidate Y and responsible for his public relations.During the campaign, an afternoon paper published an article, telling about A's extramarital relationship with X, who was a prominent figure in economic life and whose ex-wife Z was a well-known TV-reporter.The Supreme Court, as well as the lower court instances, found that the article had violated A's right to respect for her private life.In its decision, the Supreme Court discussed at length the question of striking a balance between freedom of expression and protection of private life, referring to a number of judgments by the European Court of Human Rights, among them the cases of von Hannover v.Germany (judgment of 24 June 2004, Reports of Judgments and Decisions 2004-VI) and Tammer v.Estonia (judgment of 6 February 2001, Reports of Judgments and Decisions 2001-I).The Court held that the provisions in the Penal Code concerning invasion of privacy corresponded to the principles emanating from the case law of the human rights court.According to the Penal Code, the spreading of information about the private life of a person does not constitute invasion of privacy if it is concerning the activities of a person in politics or in a public position and is necessary for the purpose of dealing with a matter of importance to society.

The Supreme Court noted that everyone, including persons known to the general public, must be able to enjoy a legitimate expectation of protection of and respect for their private life.Reports on intimate and sensitive details about a person's private life without that person's consent can be justifiable on clear and well-founded grounds only.Public curiosity alone does not justify the publishing of information about a person's private life.As Y's assistant A had an important and public task in political life.However, she was not known to the public as a politician, nor was she herself running for a political office.A and Y did not belong to the same political party, so political considerations and tactics may have contributed to A's appointment to Y's assistant.Nevertheless, A's right to protection of her private life had not been narrowed because of her tasks in the same manner as that of the politician she was working for.Moreover, the Court held that A's position and her tasks were not of such nature that she would have committed herself to representing the traditional family values and Christian ideas promoted by candidate Y in his campaign.In the Court's view, an extramarital relationship is not a matter which would have been likely to affect A's abilities to attend to her tasks.As to the newspaper article, it was not concerning politics or the possible political dimensions of A's relationship with X.Instead, it aimed clearly at bringing the love affair before the public eye.The fact that X and Z were well-known public figures, did not justify the spreading of information about A's private life.Also, it had not been shown that A, by being in public places together with X, had tacitly consented to reports about her private life.The Supreme Court concluded that publishing the information about A's private life was not justifiable and did not contribute to a debate of general interest to society.The newspaper article had violated A's right to respect for her private life.

One dissenting justice of the Supreme Court held that A had exercised a public and political function.Her appointment to Y's assistant had aroused political interest.As Y's assistant and counsel, she had political influence.Because the presidential elections are of great public interest, it is natural that political interest is fixed on a public relations person who belongs to the immediate circle of one of the two main candidates.Furthermore, considering that Y in his campaign emphasized Christian and family values, the news about A's extramarital relationship was bound to affect people's voting decisions and had therefore a link to A's political function.As regards the contents of the newspaper report, the justice found that it described both the political background and activities of A, X and Z as well as the relations between the three persons but did not amount to actual harassment.Because X and Z were prominent figures, their contacts with the campaign of one of the presidential candidates may have been of interest to the public.Therefore, the dissenting justice considered it plausible that the report about A's relationship with X was publicized not only in order to satisfy the curiosity of a particular readership but also in order to contribute to a debate of general interest.The justice regarded this as a borderline case between political journalism and celebrity gossip.However, with reference to the principle of proportionality, he held that, regarding political journalism, one should in general have recourse to criminal law and penal sanctions only in cases where the media has clearly overstepped the bounds within which freedom of expression can legitimately be exercised.This case did not amount to such excess, so the charges should have been dismissed.

See also Saaristo and Others v.Finland (application no. 184/06), judgment of the European Court of Human Rights, 12 October 2010.

29.5.2006 / 19.10.2010 / RHANSKI

Date when decision was rendered: 19.12.2005

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 3137; S2003/534

Reference to source

KKO 2005:136.

Decisions of the Supreme Court 2005 II July-December

Avgöranden av Högsta domstolen 2005 II juli-december

Korkeimman oikeuden ratkaisuja 2005 II heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 980-1003

Subject

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

Relevant legal provisions

Chapter 27, section 3a of the Penal Code (908/1974); Chapter 5, section 6 of the Tort Liability Act; sections 10 and 12 of the Constitution Act

= strafflagen (908/1974) 27 kapitel 3a §; skadeståndslagen 5 kapitel 6 §; grundlagen 10 § och 12 §

= rikoslaki (908/1974) 27 luku 3a §; vahingonkorvauslaki 5 luku 6 §; perustuslaki 10 § ja 12 §.

ECHR-8; ECHR-10

Abstract

A magazine had published a report of a violent offence of which X had been convicted.The question was whether disclosing X's name in the report was a violation of his privacy.The Supreme Court held that disclosing the name or identity of an offender in the media without the person's consent always constitutes some kind of intrusion in the person's private life.On the other hand, there may be circumstances that speak in favour of the right of the public to be informed of the name and identity of the offender.In this case, X had been convicted of an exceptionally grave assault involving deeds which degraded the victim and his dignity.The Court held that, in case of grave offences, which attract the public's attention, the identity of the offender tends to be revealed eventually one way or another.This is a consequence of the offence and X should also have been prepared for it.The Court also pointed out that the report had been published shortly after the trial, and was thus a topical peace of news at that time.The tone in the report was factual.Apart from X's name, his photo or other information pertaining to his private life had not been published.The Supreme Court concluded that disclosing X's name in the report did not constitute an invasion of his privacy under the Penal Code.In discussing the scope of the term "private life" and the possible limitations of the right to private life, the Supreme Court also took into account the case law of the European Court of Human Rights, referring for example to the cases of von Hannover v.Germany (judgment of 24 June 2004, Reports of Judgments and Decisions 2004-VI) and Sidabras and Dziautas v.Lithuania (judgment of 27 July 2004).

Three dissenting justices of the Supreme Court made a clearer distinction between the offender and his acts.They held that because of the exceptionally grave nature of X's offence, it was undisputable that informing the public of the offence contributed to a debate of general interest in society.However, considering the nature and content of the report, which was based on an inteview with the victim, telling the offender's name was not necessary and did not contribute to the public debate.The dissenting justices concluded that X was entitled to compensation because of an invasion of his privacy.

29.5.2006 / 19.12.2008 / RHANSKI

Date when decision was rendered: 16.3.2006

Judicial body: Supreme Court = Högsta domstolen = Korkein oikeus

Reference: Report no. 608; R2004/852

Reference to source

KKO 2006:20.

Decisions of the Supreme Court 2006 I January-June

Avgöranden av Högsta domstolen 2006 I januari-juni

Korkeimman oikeuden ratkaisuja 2006 I tammi-kesäkuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2006

Pages: pp. 150-156

Subject

respect for private life, freedom of expression, freedom of the press,
respekt för privatliv, yttrandefrihet, tryckfrihet,
yksityiselämän kunnioittaminen, ilmaisuvapaus, painovapaus,

Relevant legal provisions

Chapter 27, section 3a of the Penal Code; sections 10 and 12 of the Constitution Act

= strafflagen 27 kapitel 3a §; grundlagen 10 § och 12 §

= rikoslaki 27 luku 3a §; perustuslaki 10 § ja 12 §.

ECHR-8; ECHR-10

Abstract

A journalist had written a newspaper report in which it was told that district prosecutor A's wife was suspected of tax fraud.The names of the persons concerned were not mentioned.A claimed that the newspaper report violated his right to private life.The court of first instance dismissed the charges.It held, among other things, that A's position as a leading prosecutor, who specialises in economic offences, makes the suspicions of tax fraud against his wife an issue of public concern.The court of appeal, however, found that the freedom of the press could be restricted in this case, on the grounds that the criminal proceedings against A's wife were still at a pretrial phase at the time the newspaper report was published.The court referred to the presumption of innocence and also to the decision of the European Court of Human Rights in the case of "Wirtschafts-Trend" Zeitschriften-Verlagsgesellschaft mbH v.Austria (No. 2) of 14 November 2002 (Reports of Judgments and Decisions 2002-X).

The Supreme Court agreed with the first instance court.It noted that the information given in the report was as such correct.It was clear from the text that this was concerning a suspicion of a crime, not a conviction.In addition, it was especially mentioned that A himself was not suspected.The Court also pointed out that A was in a public position.As a district prosecutor specialising in economic offences, he had, among other things, brought charges and prosecuted for tax fraud offences.The news about his wife being suspected of tax fraud gave cause to pay attention to A's activities and to evaluate his possibilities to act impartially in matters concerning tax fraud.The Supreme Court stated that in the news report, the persons concerned were not described in such detail so that it would have been possible to recognize them without previous knowledge or further inquiries.The Court held that because of the issues raised by the suspicions of tax fraud and pertaining to A's performance in his public position, it was justified to give information which made A recognizable to some readers, namely persons close to him or persons working for the police or the prosecution in A's district.The Supreme Court concluded that the newspaper report was not in violation of A's right to private life.In its decision, the Court discussed, among other provisions, the protection of privacy under section 10 of the Constitution Act and Article 8 of the ECHR as well as freedom of expression as prescribed in section 12 of the Constitution Act and Article 10 of the ECHR, referring also to the decision of the European Court of Human Rights in the case of Selistö v.Finland (judgment of 16 November 2004).

11.4.2007 / 11.4.2007 / RHANSKI

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

Date when decision was rendered: 11.10.2005

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 3242; R03/1733

Reference to source

Registry of the Helsinki Court of Appeal

Helsingfors hovrätts registratorskontor

Helsingin hovioikeuden kirjaamo

Date of publication:

Subject

freedom of expression, freedom of the press, respect for private life, fair trial, presumption of innocence, limitations of rights and freedoms,
yttrandefrihet, tryckfrihet, respekt för privatliv, rättvis rättegång, rätt att förutsättas vara oskyldig, inskränkningar av friheter och rättigheter,
ilmaisuvapaus, painovapaus, yksityiselämän kunnioittaminen, oikeudenmukainen oikeudenkäynti, syyttömyysolettama, oikeuksien ja vapauksien rajoitukset,

Relevant legal provisions

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

= strafflagen 24 kapitel 10 §; grundlagen 10 § och 12 §

= rikoslaki 24 luku 10 §; perustuslaki 10 § ja 12 §.

ECHR-6; ECHR-8; ECHR-10

Abstract

X had told a small group of people, including Y, that she had been raped in a party at a hotel where a local sports team had been celebrating their national championships title.X also signed a written statement which she however withdrew the following day.She said repeatedly that she did not want to notify the police.Several months later, Y told journalist Z about the case which was then reported in a national weekly magazine.The report referred to the team in general without naming the alleged offender or offenders.The 12 players of the team sued Y, Z, the magazine and its editor-in-chief.The court of first instance sentenced the defendants to a fine for defamation and ordered them to pay damages.The court of appeal upheld the decision.In its decision, the appeal court discussed at length freedom of expression as prescribed in the Constitution Act and the ECHR.It also referred to several decisions of the European Court of Human Rights, including the cases of Bladet Tromso and Stensaas v.Norway (judgment of 20 May 1999, Reports of Judgments and Decisions 1999-III); Bergens Tidende and Others v.Norway (judgment of 2 May 2000, Reports of Judgments and Decisions 2000-IV); Karhuvaara and Iltalehti v.Finland (judgment of 16 November 2004, Reports of Judgments and Decisions 2004-X); Pedersen and Baadsgaard v.Denmark (judgment of 17 December 2004, Reports of Judgments and Decisions 2004-XI); and "Wirtschafts-Trend" Zeitschriften-Verlagsgesellschaft mbH v.Austria (judgment of 14 November 2002, Reports of Judgments and Decisions 2002-X).

The court of appeal held that the report published in the magazine had incriminated all the players in the team and had violated their right to be presumed innocent until proven guilty by a court of law.In the court's view, the role of the media as a public watchdog was not at issue in this case, despite the fact that the police had started to investigate the alleged rape only after the report had been published.It had not been shown that the police would have tried to keep the matter secret, as claimed by the defendants, or that the police would even have been notified.The alleged rape was not generally known among the local public before it was reported in the magazine with a nation-wide circulation.In the court's view, the nature and seriousness of the alleged offence required specific accuracy in reporting the issue.However, Z and the editor-in-chief had not verified the accusations in order for the report to rely on a reliable factual basis.The court concluded that in this case restricting the defendants' freedom of expression was necessary in order to protect the players' honour and their right to be presumed innocent.In assessing the damages, the court referred to the principle of proportionality and the decision of the European Court of Human Rights in the case of Tolstoy Miloslavsky v. the United Kingdom (judgment of 13 July 1995, Publications of the European Court of Human Rights, Series A, Vol. 316).It found that the damages ordered by the first instance court were reasonable.The decision of the court of appeal is final.The Supreme Court did not grant leave to appeal in the case (decision no. 1117; R2005/1142, of 15 May 2006).

When the court of appeal gave its decision, the police investigation of the alleged offence was still pending.In its investigations, the police found no evidence of rape.X never reported the alleged offence and she did not want to be heard at the proceedings referred to above.

See also Ruokanen and Others v.Finland (application no. 45130/06), judgment of the European Court of Human Rights, 6 April 2010.

13.4.2007 / 19.10.2010 / RHANSKI

Date when decision was rendered: 23.9.2009

Judicial body: Supreme Administrative Court = Högsta förvaltningsdomstolen = Korkein hallinto-oikeus

Reference: Report no. 2303; 3154/1/05

Reference to source

KHO 2009:82.

Yearbook of the Supreme Administrative Court 2009 July-December

Högsta förvaltningsdomstolens årsbok 2009 juni-december

Korkeimman hallinto-oikeuden vuosikirja 2009 heinä-joulukuu

Place of publication: Helsinki

Publisher: Edita

Date of publication: 2010

Pages: pp. 153-224

Subject

respect for private life, freedom of expression, freedom of the press,
respekt för privatliv, yttrandefrihet, tryckfrihet,
yksityiselämän kunnioittaminen, ilmaisuvapaus, painovapaus,

Relevant legal provisions

sections 1, 2-4, 2-5, 3, 17, 32 and 44 of the Personal Data Act; sections 10 and 12 of the Constitution Act; European Parliament and Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and the free movement of such data

= personuppgiftslag 1 §, 2 § 4 och 5 mom., 3 §, 17 §, 32 § och 44 §; grundlagen 10 § och 12 §; Europaparlamentets och rådets direktiv 95/46/EG om skydd för enskilda personer med avseende på behandling av personuppgifter och om det fria flödet av sådana uppgifter

= henkilötietolaki 1 §, 2 § 4 ja 5 mom., 3 §, 17 §, 32 § ja 44 §; perustuslaki 10 § ja 12 §; Euroopan parlamentin ja neuvoston direktiivi 95/46/EY yksilöiden suojelusta henkilötietojen käsittelyssä ja näiden tietojen vapaasta liikkuvuudesta (tietosuojadirektiivi).

ECHR-8; ECHR-10

Abstract

A company had collected public tax data from the Finnish tax authorities.This data, concerning some 1.2 million private individuals, was then published in the regional editions of the newspaper Veropörssi.The company had also transferred the published data to another company for the purposes of setting up a text-messaging service allowing mobile telephone users to receive information published in the Veropörssi on their telephone for a charge.Some private individuals contacted the Data Protection Ombudsman claiming that these activities were against the law and violated their right of privacy.The Data Protection Ombudsman referred the matter to the Data Protection Board requesting that the Board prohibits the company from carrying out the personal data processing activities at issue.The Board rejected the request, and the Ombudsman then brought the case before the administrative court and finally, the Supreme Administrative Court.

This case was concerning in particular the protection of privacy in data processing, on the one hand, and freedom of expression and the processing of personal data for journalistic purposes, on the other.In its decision, the Supreme Administrative Court focused mainly on two questions: whether the activities by the two companies could be regarded as processing of personal data, as specified in the Personal Data Act, and whether the activities fell within the Act's scope of application.The Act does not apply to personal data files containing, solely and in unaltered form, data that have been published by the media.In addition, only specified sections of the Act apply to processing of personal data for purposes of journalism.

The Personal Data Act implements Directive 95/46/EC on the protection of individuals with regard to the processing of personal data.In an interim decision (KHO 2007:9, 8 February 2007), the Supreme Administrative Court referred the matter to the European Court of Justice for a preliminary ruling relating to the interpretation of the Directive.The ECJ (case C-73/07, 16 December 2008) found that the activities must be considered as the 'processing of personal data' within the meaning of the Directive and must be considered as activities involving the processing of personal data carried out 'solely for journalistic purposes', if the sole object of the activities is the disclosure to the public of information, opinion or ideas.However, whether that is the case is a matter for the national court to determine.

With reference to the preparatory works of the Personal Data Act and the preliminary ruling of the ECJ, the Supreme Administrative Court held that the activities at issue constituted processing of personal data as prescribed in the Personal Data Act.Regarding the scope of application of the Act, the Court found that the provision concerning personal data files containing data that have been published by the media must be given a narrow interpretation which is compatible with EU law.Therefore, the provision cannot be interpreted to the effect that published data can be processed again, in a different context and a different purpose, without any limitations.

As far as 'journalistic purposes' were concerned, the Supreme Administrative Court based its decision on the preparatory works of the Personal Data Act, the preliminary ruling of the ECJ, the ECHR and the case law of the European Court of Human Rights.It held that collecting and processing tax data in an internal data file used for purposes of publishing a newspaper can as such be considered as processing personal data for journalistic purposes.Nevertheless, under the Personal Data Act, the controller of the file still has a duty to protect the data against unauthorized access.The Court concluded that when an internal data file is published widely and almost in its full extent, this cannot be regarded as processing of personal data for purposes of journalism as prescribed in the Personal Data Act.In the Court's opinion, public debate in a democratic society or controlling and criticizing those in the position of power, do not require publishing of personal data concerning private individuals to such an extent that was done in this case.Publishing the tax data in the Veropörssi was thus not in accordance with the Personal Data Act.Consequently, transferring the data to another company was also in violation of the Act, and could not be justified by the fact that the data had already been published in the Veropörssi.In addition, according to the ECJ, processing of personal data for journalistic purposes presupposes disclosure of information to the public.This was not the case with the text-messaging service, where personal data of a private individual was processed and disclosed to another person on request.Again, such limitation of privacy was not necessary for the purposes of freedom of expression in a democratic society.The Supreme Administrative Court quashed the decisions of the Data Protection Board and the administrative court and referred the matter back to the Board for reconsideration.

20.10.2009 / 21.10.2010 / RHANSKI

Date when decision was rendered: 1.6.2007

Judicial body: Helsinki Court of Appeal = Helsingfors hovrätt = Helsingin hovioikeus

Reference: Report no. 1791; S06/709

Reference to source

HelHO 2009:1.

Electronic database FHOT within the FINLEX databank system, administered by the Finnish Ministry of Justice

Databasen FHOT inom FINLEX-databassystemet, vilket administreras av justitieministeriet

Oikeusministeriön ylläpitämän FINLEX-tietopankin FHOT-tietokanta

Date of publication:

Subject

respect for private life, freedom of expression, freedom of the press,
respekt för privatliv, yttrandefrihet, tryckfrihet,
yksityiselämän kunnioittaminen, ilmaisuvapaus, painovapaus,

Relevant legal provisions

chapter 3, section 1-1 and chapter 5, section 6 of the Tort Liabiliry Act

= skadeståndslag 3 kapitel 1 § 1 mom. och 5 kapitel 6 §

= vahingonkorvauslaki 3 luku 1 § 1 mom. ja 5 luku 6 §.

ECHR-8; ECHR-10

Abstract

A paper had published two reports concerning X and his engagement in real estate business.The reports were largely based on Y's account of alleged offences committed by X which Y had reported to the police.X found the two newspaper reports libellous and wanted to bring charges against the paper.However, the district attorney decided not to prosecute, on the grounds that prosecution for the alleged offence of defamation had become barred by lapse of time and the acts did not fulfil the essential elements of aggravated defamation.Nevertheless, X filed an action for damages against the paper.The court of first instance found that liability for damages for defamation does not require that the defendant is sentenced to a punishment.However, it is necessary that the essential elements of defamation are fulfilled.The court concluded that this was the case and ordered the paper to pay damages to X.

The paper appealed to the court of appeal.In its decision, the court of appeal discussed in detail freedom of expression and the right to respect for private life, taking also into account the relevant case law of the European Court of Human Rights and, in particular, the case of Selistö v.Finland (judgment of 16 November 2004).The court found that by reason of the duties and responsibilities inherent in the exercise of freedom of expression and the seriousness of the accusations presented in the newspaper reports, the paper should have made sure that the information presented is reliable before publishing the first report.In the court's view, a mere report of an offence to police cannot in general be regarded as an official source which the media have a right to rely on without a duty to verify the veracity of the information presented.In addition, X should at the very least have been given the possibility to present his own views.Moreover, although X's name was not mentioned in the newspaper reports, other information was given which made X identifiable beyond his immediate circle of acquaintances.The court of appeal concluded that the essential elements of defamation had been fulfilled and X had a right to damages for defamation.The decision is final.

17.2.2010 / 29.4.2010 / RHANSKI