In the case of Arnason v Iceland ([2017] ECHR 530) the First Section of the Court of Human Rights applying the Axel Springer criteria for balancing Articles 8 and 10, held that a domestic defamation judgment arising out of a publication which made an accusation of fraud did not violate Article 10.
Background
The applicant, Ólafur Arnarson was a journalist and freelance writer for the web-based media site Pressan. The case concerned proceedings brought against him for defamation following the publication of an article accusing the chief executive officer of the Icelandic Federation of Fishing Vessel Owners (“the LIU”) of accounting deception and fraud.
Between 2010 and 2011 Mr Arnarson published a series of articles regarding rumours that LIU was paying a website to lobby in its favour, namely by discrediting its detractors. One of the articles pointed out that it was possible that not all LIU’s board members were aware that the organisation’s funds were being used for that purpose, and insinuated that the payments had been well-disguised in the organisation’s financial records by LIU’s chief executive officer alone.
LIU’s chief executive officer brought proceedings for defamation against the applicant. In November 2012, the District Court found that this insinuation had been defamatory. The court took into account that the fisheries management system was a matter of great public concern in Iceland, with different views being expressed, but found in essence that Mr Arnarson had not given any proof to show that his allegations were true.
The applicant was ordered to pay 300,000 Icelandic Krónur (approximately €2,500 ) in compensation. In February 2013 the applicant was refused permission to appeal by the Supreme Court.
On 21 August 2013, the applicant complained to the Court of Human Rights that there had been a breach of his rights under Article 10 of the Convention.
Judgment
It was common ground that there had been an interference with the applicant’s Article 10 rights and that this was prescribed by law and pursued a legitimate aim ([30] and [31]).
The Court had to strike a fair balance between the right to respect for private life under Article 8 and the right to freedom of expression under Article 10. It had to apply the factors set out in cases such as Axel Springer v Germany ([2012] ECHR 227,[89] to [95]).
The Court acccepted that the attack on the reputation of LIU’s chief executive officer reached the level of seriousness so as to fall within the scope of Article 8
“In this respect, it is noted that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. At the same time, the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press” [37]
The Court then considered the Axel Springer criteria:
(a) Contribution to a debate of general interest
It was not disputed that, as the District Court held, the subject matter of the impugned article was an issue of public interest [38].
(b) How well known the person concerned is, the subject matter of the report and the persons’s conduct prior to publication
The subject matter was the suspicion of criminal misconduct. The chief executive was well known and part of his job was to participate in public debates on maritime affairs. As a result, the limits of acceptable criticism were wider than in the case of a private individual [39] to [40].
(c) Method of obtaining the information and its veracity
The Court noted that the safeguards of Article 10 for journalists in relation to reporting on issues of general interest is is
“subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism” [42]
There were no special grounds to dispense the media from their ordinary obligation to verify factual allegations that are defamatory [42].
The applicant did not establish that his allegations were based on a sufficiently accurate or reliable factual basis. In publishing this allegation without confirmation as to its veracity, the applicant could not have been acting in good faith in accordance with the standards of responsible journalism [43].
(d) Content, form and consequences of the impugned statement
The District Court rejected the applicant’s argument that the statements were value judgments and found that they constituted insinuations of fraud by abuse of position and negligence at work. The Court had no grounds for calling this conclusion into question [45]
(e) Severity of the sanctions
The penalties imposed were not excessive.
Conclusion
The Court concluded that the District Court sufficiently balanced freedom of expression with the right to private life and, as a result, there was no violation of Article 10.
Comment
In this judgment, in accordance with its recent practice, the Court of Human Rights applied the Axel Springer criteria for balancing Articles 8 and 10 to a defamation case. As I have previously argued, these criteria – developed in the conventional privacy context – are not well adapted for use in a defamation case.
Although the result, on the facts, is unsurprising it is difficult to see how the criteria provided any assistance to the Court. In contrast to a privacy case, the crucial issue in a “public interest journalism” defamation case concerns the steps taken by the journalist to verify the facts before publication. This is what Strasbourg refers to as “compliance with the ethics of journalism” – in English terms adherence to the standards of responsible journalism. The Court deals with this – somewhat artificially under criterion (c) – “the method of obtaining the information and its veracity”.
There remains a strong argument for taking a different approach to defamation from that developed for privacy. In the former cases, the issue is truth, in the latter it is “intrusion” or “secrecy”.
Nevertheless, this case provides a useful reminder that whatever the public interest in a story, a journalist only obtains Article 10 protection for the publication of false factual allegations if there has been compliance with “the ordinary obligation to verify”.
Finally, it should be noted that this appears to be the first time that Iceland has successfully defended an application to the Court of Human Rights under Article 10. It appears that the domestic courts may be learning from their Strasbourg reverses.
Hugh Tomlinson QC is the joint author of The Law of Human Rights, 2nd Edn, OUP, 2009, and an editor of Inforrm
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