Free Speech Limits
Cases
EDITORIAL BOARD OF PRAVOYE DELO AND SHTEKEL v. UKRAINE
[2011] ECHR 748 (2014) 58 EHRR 28, [2011] ECHR 748, 58 EHRR 28THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant is the editorial board of Pravoe Delo, a newspaper officially registered in Odessa in May 2000. The second applicant is the editor-in-chief of Pravoe Delo. He lives in Odessa.
At the material time Pravoe Delo was a local newspaper published three times a week with a circulation of 3,000 copies. It published reports and material on political and social matters in Ukraineand, in particular, the Odessa Region. Due to lack of funds, the newspaper often reprinted articles and other material obtained from various public sources, including the Internet.
On 19 September 2003 Pravoe Delo published an anonymous letter allegedly written by an employee of the Security Service of Ukraine, which the second applicant’s colleague, Ms I., had downloaded from a news website. The letter contained allegations that senior officials of the Odessa Regional Department of the Security Service had been engaging in unlawful and corrupt activities, and in particular that they had connections with members of organised criminal groups. One of the paragraphs of the letter read as follows:
“… The Deputy Head of [the Odessa Regional Department of the Security Service] [I. T.], a close friend and assistant of the Head of the Department P., established ‘business’ contacts with [the organised criminal group] of [A. A.] … A member of [the organised criminal group G. T.], an agent of [A. A.], who is in charge of the main areas of activities of the gang: [he is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region …”
The letter was followed by these comments, prepared by Ms I. on behalf of the editorial board:
“When publishing this letter without the knowledge and consent of the editor-in chief, I understand that I may not only face trouble … but I may also create problems for the newspaper. Because, if this letter is [misinformation], then [the media], in which it appears may be endangered. On the other hand, if this letter is genuine, then its author faces a higher risk. Besides, given that this anonimka [anonymous letter] has already been published on the Odessa website Vlasti.net (to which we refer, in accordance with their requirement), we have the blessing of God [to publish it]. We are proceeding on the understanding that, in accordance with the Act on democratic civil control over the military organisation and law-enforcement organs of the State, we are carrying out civil control and, pursuant to section 29 of the Act, we would like to receive open information concerning the facts described in this letter from the relevant authorities. Moreover, [it is to be noted] that the Department of [the Security Service] in the Odessa Region did not react to an analogous publication in the Top Secret [newspaper] … I remind [you] that the [Pravoe Delo] newspaper … is widely open for letters in reply and comments from all interested agencies.”
In October 2003 G. T., who at the time lived in Odessa and was the President of the Ukraine National Thai Boxing Federation, lodged a defamation claim with the Prymorskyy District Court of Odessa against the applicants. G. T. alleged that the information in the Pravoe Delo issue of 19 September 2003 concerned him, that it was untrue and had damaged his dignity and reputation. He asked the court to order the applicants to publish a retraction and an apology and to pay him compensation for non-pecuniary damage in the amount of 200,000 Ukrainian hryvnias (UAH)1.
The applicants first argued before the court that they were not responsible for the accuracy of the information contained in the material that they had published, as they had reproduced material published elsewhere without any modifications. The publication contained a reference to the source of the material and was followed by comments explaining the editors’ position regarding the material and inviting comments from the persons and bodies concerned. The applicants also submitted that, if the court were to award G. T. the amount of compensation he had claimed, the newspaper would become insolvent and would have to close.
Subsequently, at a hearing on 24 April 2004, the second applicant stated that the article was not about the claimant and that its wording did not necessarily establish that it was a particular “G. T.” who was being referred to.
On 7 May 2004 the court ruled against the applicants. It found that the information at issue did concern the claimant, who was a public figure involved in public activities in the Odessa Region and had represented Ukraine at sports events abroad in his capacity as the President of the Ukraine National Thai Boxing Federation. In that context, the court noted that this had not been contested by the applicants in their initial submissions and that the publication was about the activities of the Security Service in the Odessa Region. The court further held that the content was defamatory and that the applicants had failed to prove that it was truthful. It found no grounds to release the applicants from civil liability under section 42 of the Press Act, as the internet site to which the applicants referred was not printed media registered pursuant to section 32 of the Press Act.
The court ordered the first applicant to publish a retraction of the following content of the publication:
“… A member of [the organised criminal group G. T.], an agent of [A. A.], who is in charge of the main areas of activities of the gang: [he is] a coordinator and sponsor of murders, [he] meets with [I. T.] and resolves financial issues for the top officials of the Department of [the Security Service] in the Odessa Region …”
The court further ordered the second applicant to publish an official apology in the newspaper.
In determining the amount of compensation to be paid to the claimant, the court considered the submissions of the latter and the information concerning the financial situation of the newspaper. It noted that its gross annual income was about UAH 22,0002 and found it reasonable to order the applicants jointly to pay G. T. UAH 15,0003 for non pecuniary damage. The applicants were also ordered to pay to the State Budget UAH 7501 in court fees.
The applicants appealed. They maintained the submissions they had made before the first-instance court and also contended that the editorial board had not been registered as a legal entity pursuant to the relevant regulations on registration of the media and that the second applicant had not been appointed as editor-in-chief in accordance with the law. Thus, in their view, they could not take part in the proceedings.
The applicants further argued that invoking their civil liability was contrary to section 41 of the Press Act and section 17 of the Act on the State support of mass media and social protection of journalists, stating that they had not intended to defame G. T. and that, by publishing the material, they had wished to promote public discussion of the issues raised in that material which were of the high public interest. According to them, it was their duty to disseminate the material and the public had the right to receive it.
The second applicant also submitted that he had not authorised the publication of the material at issue and that the legislation did not provide for an obligation to apologise as a sanction for defamation.
On 14 September 2004 and 24 February 2005, respectively, the Odessa Regional Court of Appeal and the Supreme Court rejected the applicants’ appeals and upheld the judgment of the first-instance court.
On 3 July 2006 the applicants and G. T. concluded a friendly-settlement agreement, pursuant to which the latter waived any claim in respect of the amount of compensation under the judgment of 7 May 2004. The applicants, on their part, undertook to cover all the costs and expenses relating to the court proceedings and to publish in Pravoe Delo promotional and informational materials at G. T.’s request, the volume of which was limited to the amount of compensation under the judgment.
In 2008 the applicants discontinued publishing Pravoe Delo.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Constitution of Ukraine of 28 June 1996
Relevant extracts from the Constitution read as follows:
Article 32
“… Everyone is guaranteed judicial protection of the right to rectify incorrect information about himself or herself and members of his or her family, and of the right to demand that any type of information be rectified, and also the right to compensation for pecuniary and non-pecuniary damage inflicted by the collection, storage, use and dissemination of such incorrect information.”
Article 34
“Everyone is guaranteed the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
Everyone has the right to freely collect, store, use and disseminate information by oral, written or other means of his or her choice.
The exercise of these rights may be restricted by law in the interests of national security, territorial indivisibility or public order, with the purpose of preventing disturbances or crime, protecting the health of the population, the reputation or rights of other persons, preventing the publication of information received confidentially, or maintaining the authority and impartiality of justice.”
B. Civil Code of 1963 (repealed with effect from 1 January 2004)
Relevant extracts from the Civil Code read as follows:
Article 7. Protection of honour, dignity and reputation
“A citizen or an organisation shall be entitled to demand in a court of law that material be retracted if it is not true or is set out untruthfully, degrades their honour and dignity or reputation, or causes damage to their interests, unless the person who disseminated the information proves that it is truthful …
A citizen or an organisation concerning whom material that does not conform to the truth and damages their interests, honour, dignity or reputation has been disseminated shall be entitled to demand compensation for pecuniary and non-pecuniary damage as well as a retraction of such information …”
C. Civil Code of 2003 (in force from 1 January 2004)
The provisions of the Civil Code of 2003 pertinent to the case read as follows:
Article 16
Protection of civil rights and interests by a court
1. Every person has the right to apply to a court of law for the protection of his/her … right and interest.
2. The means for the protection of civil rights and interests may include:
1) recognition of the right;
2) declaration of nullity of an act;
3) cessation of actions violating the right;
4) restoration of the situation which existed before the violation;
5) forced fulfillment of an obligation;
6) modification of legal relations;
7) discontinuance of legal relations;
8) compensation of [pecuniary] damage …;
9) compensation of moral (non-pecuniary) damage;
10) declaration of unlawfulness of a decision, actions or inactivity of a State body …
The court may give protection to the civil right or interest by other means envisaged by a contract or law.
…”
Article 277
Retraction of untrue information
“1. A physical person whose non-pecuniary rights have been infringed as a result of dissemination of untrue information about him or her and (or) members of his or her family, shall have the right to reply, and [the right to] the retraction of that information.
…
3. Negative information disseminated about a person shall be considered untrue if the person who disseminated it does not prove the contrary.
4. Untrue information shall be retracted by the person who disseminated the information …
5. If the untrue information is contained in a document which has been accepted (issued) by a legal entity, that document shall be recalled.
6. A physical person whose non-pecuniary rights have been infringed in printed or other mass media shall have the right to reply, and also [the right to] the retraction of the untrue information in the same mass media, in the manner envisaged by law…
Untrue information shall be retracted irrespective of the guilt of the person who disseminated it.
7. Untrue information shall be retracted in the same manner as it was disseminated.”
D. Information Act of 2 October1992
Relevant extracts from the Information Act provided, as worded at the material time, as follows:
Section 20. Mass media
“Printed mass media are periodical prints (press) – newspapers, magazines, bulletins – and occasional prints with a set circulation.
Audiovisual mass media are radio, television, cinema, audio, video records and so on.
The procedure of establishing … of particular media shall be determined by the laws concerning such media.”
Section 47. Liability for infringement of the legislation on information
“…
Liability for infringement of the legislation on information shall be borne by persons responsible for the following infringements:
…
dissemination of information that does not correspond to reality, defames the honour and dignity of a person …”
Section 49. Compensation for pecuniary and non-pecuniary damage
“If physical or legal persons have suffered pecuniary or non-pecuniary damage caused by an offence committed by an entity engaged in informational activities, those responsible [for the offence] shall compensate [for the damage] voluntarily or pursuant to a court decision …”
E. Printed Mass Media (Press) Act of 16 November 1992
Relevant extracts from the Press Act provide:
Section 1. Printed mass media (press) in Ukraine
“Printed mass media (press) in Ukraine, as referred to in this Act, are [defined as] periodical and continuing publications issued under a permanent name [at least] once a year pursuant to a certificate of State registration …”
Section 7. Entities engaged in printed mass media activities
“Entities engaged in printed mass media activities shall include [their] founders (or co-founders), editors (or editors-in-chief), editorial boards …”
Section 21. Editorial board of the printed mass media
“The editorial board … shall prepare and issue printed mass media under the instructions of its founder (or co-founders).
The editorial board shall act on the basis of its organisational charter and shall implement the programme of the printed mass media approved by its founder (or co founders).
The editorial board … shall acquire the status of a legal entity from the day of State registration, which shall be carried out in accordance with the legislation of Ukraine.”
Section 21. Editor (editor-in-chief) of the printed mass media
“The editor (or editor-in-chief) … shall be the head of the editorial board, authorised by the founder (or co-founders).
The editor (or editor-in-chief) … shall manage the editorial board’s activities within his competence, as envisaged by its organisational charter, shall represent the editorial board in its relations with the founder (or co-founders), the publisher, authors, State organs, associations of citizens, and individual citizens, as well as before the courts and arbitration tribunals and shall be responsible for compliance with the [legislative] requirements as to the activities of the printed media, its editorial board …”
Section 26. State registration of the printed mass media
“…All printed mass media in Ukraine shall be subject to State registration, irrespective of the area of its dissemination, circulation and the manner of its creation …”
Section 32. Publishing data
“Every issue of printed mass media shall contain the following publishing data:
(1) name of publication …
Distribution of [publications] without publishing data shall be prohibited.”
Section 37. Retraction of information
“Citizens, legal entities and State organs, and their legal representatives shall have the right to demand that the editorial board of the printed mass media publish a retraction of information disseminated about them which does not correspond to reality or defames their honour and dignity.
If the editorial board does not have any evidence that the content published by it corresponds to reality, it must, if requested by the claimant, publish a retraction of such information in the next issue of the printed mass media or to publish the retraction on its own initiative …”
Section 41. Grounds for liability
“Editorial boards, founders, publishers, distributors, State organs, organisations and associations of citizens shall be liable for infringements of the legislation on the printed mass media.
Infringements of Ukrainian legislation on the printed mass media are:
1) violations envisaged by section 47 of the Information Act …
For such an infringement the guilty party shall be brought to disciplinary, civil, administrative, or criminal liability in accordance with the current legislation of Ukraine.
The journalist … editor (or editor-in-chief) or other persons with whose permission the material which violates this Act has been published shall bear the same liability for abuse of the freedom of the printed mass media as the authors of that material.”
Section 42. Indemnity from liability
“Editorial board and journalists are not liable for the publication of material that does not correspond to reality, defames the honour and dignity of citizens and organisations, infringes the rights and lawful interests of citizens, or constitutes abuse of the freedom of the printed mass media and the rights of journalists if:
1) the information has been received from news agencies or from the founder (co founders) [of that media source];
2) the information is contained in a reply given in accordance with the Information Act to a request for access to official documents and to a request for written or oral information;
3) the information is a verbatim reproduction of official speeches of the officials of State organs, organisations and associations of citizens;
4) the information is a verbatim reproduction of material published by other printed mass media and contains a reference to [the latter];
5) the information contains secrets that are specifically protected by law, where the journalist has not obtained this information unlawfully.”
F. State Support of Mass Media and Social Protection of Journalists Act of 23 September 1997
Relevant extracts from the Act provide:
Section 17. Liability for trespass or other actions against the life and health of a journalist and a journalist’s liability for non-pecuniary damage caused by him
“… In the process of consideration by a court of a dispute concerning non-pecuniary damage between a journalist or mass media, as a defendant party, and a political party, electoral bloc, [or] an office holder (or office holders), as a claimant, the court may award compensation in respect of non-pecuniary damage only if the journalist or officials of the media [acted] intentionally. The court shall take into account the outcome of the use by the claimant of extrajudicial, in particular pre-trial opportunities for retraction of untrue material, defending of his honour and dignity and reputation, and settlement of the entire dispute. Having regard to the circumstances, the court may refuse compensation in respect of non-pecuniary damage.
The intention of the journalist and/or official of the media means his or their stance in regard to dissemination of information when the journalist and/or official of the media are aware of the untruthfulness of the information and have anticipated its socially injurious consequences.
The journalist and/or the mass media shall be released from liability for dissemination of the information that does not correspond to reality if the court establishes that the journalist acted in good faith and checked the information.”
G. Resolution of the Plenary Supreme Court of Ukraine of 27 February 2009 on judicial practice in cases concerning the protection of the honour and dignity of a physical person, and of the reputation of a physical person and legal entity
The relevant extracts from the Resolution of the Plenary Supreme Court read as follows:
“26. According to Article 19 of the Constitution of Ukraine legal order in Ukraine is based on [the principle] according to which no one shall be forced to do what is not envisaged by the legislation. In its turn, Article 34 paragraph 1 of the Constitution of Ukraine guarantees everyone the right to freedom of thought and speech, and to the free expression of his or her views and beliefs.
A court has no power to oblige a respondent to apologise to a claimant … as forced apology is not envisaged by Articles 16 [and] 277 [of the Civil Code of 2003] as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information.”
H. Judicial practice of the Supreme Court in cases concerning the application of Articles 16 and 277 of the Civil Code of 2003
The Supreme Court confirmed the Plenum’s approach in a defamation case, having quashed the lower courts’ decisions by which a respondent was ordered, inter alia, to apologise as not based on law. In particular, the relevant extract of the Supreme Court’s judgment (dated 17 June 2009) reads as follows:
“…
The court[s] are not entitled to oblige a respondent to apologise to a claimant in one or another form, as Articles 16 [and] 277 [of the Civil Code of 2003] do not provide for forced apology as a means of judicial protection of honour, dignity, [and] business reputation [in case of] dissemination of untrue information; compulsion of a person to change his/her beliefs is an interference with the freedom of speech and expression guaranteed by the Constitution of Ukraine and Article 10 of the Convention…”
II. Relevant COUNCIL OF EUROPE AND international material
A. Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet
At their 1010th meeting on 7 November 2007 the Ministers’ Deputies considered essential aspects of the use of new information and communication technologies and services, in particular the Internet, in the context of protection and promotion of human rights and fundamental freedoms. They acknowledged the increasingly important role the Internet was playing in providing diverse sources of information to the public and the people’s significant reliance on the Internet as a tool for communication.
It was noted however that the Internet could, on the one hand, significantly enhance the exercise of human rights and fundamental freedoms, such as the right to freedom of expression, while, on the other hand, the Internet might adversely affect other rights, freedoms and values, such as the respect for private life and secrecy of correspondence and for the dignity of human beings.
The Ministers’ Deputies adopted recommendations to the Council of Europe’s member States with regard to the governance of the Internet. These included recommendation to elaborate a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies and to encourage the private sector to develop open and transparent self- and co-regulation on the basis of which key actors in this field could be held accountable.
B. Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005
The growing importance of the Internet as a vehicle for facilitating in practice the free flow of information and ideas was also recognised in the Joint Declaration issued by Mr A. Ligabo, Mr M. Haraszti, and Mr E. Bertoni. They stressed the need for strict application of international guarantees of freedom of expression to the Internet. In the context, it was stated that no one should be liable for content on the Internet of which they were not the author, unless they had either adopted that content as their own or refused to obey a court order to remove that content.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The applicants complained that their right to freedom of expression had been violated in that the courts had allowed G. T.’s claim concerning the content published in Pravoe Delo on 19 September 2003. They stated that the interference had neither been in accordance with the law nor necessary in a democratic society. The applicants relied on Article 10 of the Convention, which reads as follows:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
A. Admissibility
The Government submitted that the applicants could not claim to be victims of a violation of Article 10 of the Convention, as the interference with their right to freedom of expression had been based on the decisions of the domestic courts. The applicants did not complain under Article 6 § 1 of the Convention that the impugned court proceedings had been unfair, there had been no irregularities in these proceedings, and the Court had limited jurisdiction regarding the assessment of facts and the application of law by domestic courts. On these grounds, they invited the Court to declare the application incompatible ratione personae with the provisions of the Convention.
The applicants disagreed.
The Court considers that the Government’s objection is closely linked to the substance of the applicants’ complaints under Article 10 of the Convention and that it must therefore be joined to the merits.
The Court further notes that the application is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Submissions of the parties
(a) The applicants
The applicants argued that the domestic legislation concerning the liability of the press for defamation lacked clarity and foreseeability and that the domestic courts had disregarded the relevant legislative guarantees against punishment for unverified statements made by journalists. They submitted that the courts had not taken into account the fact that they had not disseminated information about G. T., that the second applicant had not given his permission for the publication of the material, that they had sufficiently distanced themselves from the publication, and that G. T. had not used the opportunity of asking the editorial board for a retraction before bringing his defamation claim before the courts.
The second applicant also contended that Ukrainian law did not provide for an obligation to apologise as a sanction for defamation.
The applicants further submitted that they had disseminated the material, which had already been published on the Internet, with a view to promoting further discussion of the important political issues raised in the material. They stated that the amount of compensation which they had been required to pay had been too high given the annual income of the newspaper, and had placed a disproportionate burden on them. In this context, they stated that they had had to discontinue publishing Pravoe Delo.
(b) The Government
The Government submitted that the interference with the applicants’ right to freedom of expression had been lawful in that it had been based on the clear, accessible and foreseeable provisions of the domestic law, namely, on Article 7 of the Civil Code of 1963, section 47 of the Information Act of 2 October 1992, and sections 1, 32 and 42 of the Printed Mass Media (Press) Act of 16 November 1992, as applied by the national courts in the applicants’ case.
The Government further submitted that the interference had been aimed at protecting the honour, dignity and business reputation of a private person, whose rights had been prejudiced by the publication at issue. According to them, this had been a legitimate aim within the meaning of Article 10 § 2 of the Convention, which the applicants did not deny.
The Government argued that the publication had contained serious factual allegations directed against a prominent public figure who had contributed to the development of sports in Ukraine. The applicants had failed to prove these allegations. The fact that they had reproduced the material obtained from a website had not been sufficient to release them from such an obligation, as the legal status of information derived from the Internet had not been determined under the domestic law. Therefore, the Government stated that the interference had been necessary in the present case.
They also submitted that the applicants had not actually been required to pay the compensation awarded by the courts to the claimant, as they had settled the matter at the stage of enforcement of the judgment of 7 May 2004. According to the Government, it had not been proved by the applicants that they had discontinued publishing their newspaper because of the interference at issue.
Relying on the Court’s decision as to the admissibility of Vitrenko and Others v. Ukraine ((dec.), no. 23510/02, 16 December 2008), the Government contended that the court’s order to apologise had not been contrary to the principles embodied in Article 10 of the Convention.
On the above grounds, the Government stated that the impugned interference had not been disproportionate.
2. The Court’s assessment
(a) Whether there was an interference with the right to freedom of expression
The Court observes that the publication at issue involved defamatory statements of fact. According to the findings of the civil courts, it was stated that a public figure, the President of the UkraineNational Thai Boxing Federation, was a member of an organised criminal group and “a coordinator and sponsor of murders”. The applicants had failed to show that those statements were true and the courts ordered them to publish a retraction and apology and to compensate the person concerned for the non pecuniary damage caused by the publication.
The Court considers that the courts’ decisions constituted an interference with the applicants’ right to freedom of expression.
The Court reiterates that its task in exercising its supervisory function under Article 10 of the Convention is to look at the interference complained of in the light of the case as a whole and, in particular, to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This inevitably entails a review of the decisions taken by the courts at the domestic level, irrespective of whether any complaints have been raised concerning the courts’ compliance with the procedural guarantees under Article 6 of the Convention. Therefore, the Court dismisses the Government’s objection as to the applicants’ victim status.
The Court will now examine whether the interference was justified under Article 10 § 2 of the Convention.
(b) Whether the interference was prescribed by law
The Court notes that the first and most important requirement of Article 10 of the Convention is that any interference by a public authority with the exercise of the freedom of expression should be lawful: the first sentence of the second paragraph essentially envisages that any restriction on expression must be “prescribed by law”. In order to comply with this requirement, interference does not merely have to have a basis in domestic law. The law itself must correspond to certain requirements of “quality”. In particular, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 XI).
The degree of precision depends to a considerable extent on the content of the instrument at issue, the field it is designed to cover, and the number and status of those to whom it is addressed (see Groppera Radio AG and Others v. Switzerland, 28 March 1990, § 68, Series A no. 173). The notion of foreseeability applies not only to a course of conduct, of which an applicant should be reasonably able to foresee the consequences, but also to “formalities, conditions, restrictions or penalties”, which may be attached to such conduct, if found to be in breach of the national laws (see, mutatis mutandis, Kafkaris v. Cyprus [GC], no. 21906/04, § 140, ECHR 2008 …).
Turning to the circumstances of the present case, the Court observes that the applicants’ submissions regarding the question of the lawfulness of the interference essentially concern two specific issues, namely, the alleged lack of clarity and foreseeability of the relevant legislative provisions concerning journalists’ specific safeguards and the alleged absence of legal grounds for an obligation to apologise in cases of defamation.
(i) Measures envisaged by Ukrainian law in cases of defamation
As regards the latter issue, the Court observes that Ukrainian law provides that, in cases of defamation, injured parties are entitled to demand a retraction of untrue and defamatory statements and compensation for damage. Both measures were applied in the applicants’ case. However, in addition to those measures, the courts ordered the second applicant to publish an official apology in the newspaper. The Court observes that such a measure was not specifically provided for in the domestic law.
The Court has already dealt with a similar situation in a case against Russia. In that case it was prepared to accept that the interpretation by the domestic courts of the notions of retraction or rectification under the relevant legislation as possibly including an apology was not such as to render the impugned interference unlawful within the meaning of the Convention (see Kazakov v. Russia, no. 1758/02, § 24, 18 December 2008).
However, in contrast to the latter case, the present case contains no evidence or, at the least, a persuasive argument that Ukrainian courts were inclined to give such a broad interpretation to the legal provisions concerning the measures applicable in cases of defamation or that that was their general approach in such cases.
The Court further observes that, despite the second applicant’s specific and pertinent complaints in that connection, the domestic courts failed to give any explanation for the obvious departure from the relevant domestic rules (see paragraph 17 above). The Government’s submissions in that regard did not clarify the issue either.
As it appears from the relevant domestic judicial practice, though subsequent to the events at issue, imposition of an obligation to apologize in defamation cases may run counter the Constitutional guarantee of freedom of expression (see paragraphs 27-28 above).
In these circumstances, the Court finds that the court’s order to the second applicant to apologise was not prescribed by law and that accordingly there has been a violation of Article 10 of the Convention in that respect.
(ii) Journalists’ specific safeguards in Ukrainian law
The Court observes that the publication at issue was a verbatim reproduction of material downloaded from a publicly accessible internet newspaper. It contained a reference to the source of the material and comments by the editorial board, in which they formally distanced themselves from the content of the material.
Ukrainian law, specifically the Press Act, grants journalists immunity from civil liability for verbatim reproduction of material published in the press (see paragraph 25 above). The Court notes that this provision generally conforms to its approach to journalists’ freedom to disseminate statements made by others (see, for instance, Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298; and Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001 III).
However, according to the domestic courts, no such immunity existed for journalists reproducing material from internet sources not registered pursuant to the Press Act. In this connection, the Court observes that there existed no domestic regulations on State registration of internet media and that, according to the Government, the Press Act and other normative acts regulating media relations in Ukraine did not contain any provisions on the status of internet-based media or the use of information obtained from the Internet.
It is true that the Internet is an information and communication tool particularly distinct from the printed media, in particular as regards the capacity to store and transmit information. The electronic network serving billions of users worldwide is not and potentially cannot be subject to the same regulations and control. 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. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.
Nevertheless, having regard to the role the Internet plays in the context of professional media activities (see paragraphs 29-32 above) and its importance for the exercise of the right to freedom of expression generally (see Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 27, 10 March 2009), the Court considers that the absence of a sufficient legal framework at the domestic level allowing journalists to use information obtained from the Internet without fear of incurring sanctions seriously hinders the exercise of the vital function of the press as a “public watchdog” (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). In the Court’s view, the complete exclusion of such information from the field of application of the legislative guarantees for journalists’ freedom may itself give rise to an unjustified interference with press freedom under Article 10 of the Convention.
The Court further observes that under Ukrainian law journalists may not be required to pay compensation in defamation cases if they did not disseminate the untrue information intentionally, acted in good faith and made checks on such information, or if the injured party failed to use the available possibilities to settle the dispute before going to court (see paragraph 26 above). In the domestic proceedings, the applicants explicitly raised the defence of qualified privilege under the latter provision. In particular, they argued that they had no malicious intent to defame the claimant by the publication of the material in question and that the public had an interest in receiving the information. Furthermore, they argued, that by reproducing the material previously published on the Internet, their intention was to promote debate and discussion on political matters of important public interest. They also argued that the claimant had not taken any steps to settle the dispute with the applicants despite the fact that in the same publication they had invited any person concerned to comment on it. However, their plea was entirely ignored by the courts.
Therefore, the Court finds that, given the lack of adequate safeguards in the domestic law for journalists using information obtained from the Internet, the applicants could not foresee to the appropriate degree the consequences which the impugned publication might entail. This enables the Court to conclude that the requirement of lawfulness contained in the second paragraph of Article 10 of the Convention was not met.
In these circumstances, the Court does not consider it necessary to deal with the parties’ remaining submissions concerning this provision or to examine the proportionality of the interference at issue.
Accordingly, there has been a violation of Article 10 of the Convention as regards this aspect of the case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Submissions of the first applicant
The first applicant submitted that the appropriate just satisfaction in the case would be a finding of a violation of Article 10 of the Convention and an indication of general measures to be adopted by Ukraine to bring its legislation and judicial practice into compliance with “European standards of freedom of expression” as regards the use of “socially important information, available on the Internet, the credibility of which is open to question.”
The Government did not comment on this aspect of the case.
Having regard to the circumstances of the present case and the conclusions the Court has reached under Article 10 of the Convention (see paragraphs 64-68 above), it does not consider it necessary to examine this case under Article 46 of the Convention with a view to indicating specific measures that might be taken in order to put an end to a violation found in the case (see, mutatis mutandis, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). The Court also notes that there is no call to award the first applicant any sum for just satisfaction.
B. Submissions of the second applicant
1. Damage
The second applicant claimed 7,000 euros (EUR) for non-pecuniary damage.
The Government contested the second applicant’s claim.
The Court considers that the second applicant has suffered some distress and anxiety on account of the violations of his right to freedom of expression. Ruling on an equitable basis, as required by Article 41 of the Convention, it awards him EUR 6,000 in this connection.
2. Costs and expenses
The second applicant made no claim as to costs and expenses. Therefore, the Court makes no award under this head.
3. Default interest
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to join to the merits the Government’s objection concerning the applicants’ victim status and rejects it;
Declares the application admissible;
Holds that there has been a violation of Article 10 of the Convention on account of the domestic courts’ order to the second applicant to publish an official apology;
Holds that there has been a violation of Article 10 of the Convention on account of the applicants’ punishment for the impugned publication;
Holds
(a) that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,000 (six thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Dismisses the remainder of the second applicant’s claim for just satisfaction.
Done in English, and notified in writing on 5 May 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann,
Registrar President
1. About 33,060 euros (EUR).
2. About EUR 3,511.
3. About EUR 2,394.
1. About EUR 120.
Cornec -v- Morrice & Ors
[2012] IEHC 376
CJUDGMENT of Mr. Justice Hogan delivered on the 18th day of September, 2012
1. It might seem surprising that litigation presently pending in the District Court of Denver, Colorado (“the Colorado litigation”) concerning a disputed share purchase contract of the shares of an oil company registered in St. Kitts and Nevis and which is currently operating in Belize should give rise to an application in this jurisdiction for evidence to be taken on commission of an investigative journalist and a former theologian who specialises in the investigation of cults. This, nevertheless, is the background to the present application under s. 1 of the Foreign Tribunals Evidence Act 1856 (“the Act of 1856”).
2. While this application raises many difficult questions of evidence, procedure, conflict of laws and the scope of journalistic privilege, it is necessary first to set out the background to this application.
The background to the Colorado litigation
3. So far as can be gleaned from the Colorado pleadings, it seems that Ms. Morrice, a British national, is a petroleum geologist who, along with Mike Usher, a Belizean seismic surveyor, had long believed that Belize had (then undiscovered) oil reserves. To that end they set up a series of companies which are now controlled by International Natural Energy LLC (“INE”). A subsidiary of INE, Belize Natural Energy Ltd. (“BNE”) was granted a prospecting licence by the Belizean Government in January, 2003 and, to the surprise of industry observers, BNE discovered significant quantities of oil in June, 2005. Oil was then extracted and BNE commenced production and sale in January, 2006. In the words of Mr. Justice Bannister of the East Caribbean Supreme Court (Nevis Circuit) in SM Life Ventures v. Morrice size=”2″ face=”Verdana”>, in a judgment delivered on July 16th, 2012, BNE has since “been astonishingly successful”. The decision in SM Life Ventures provides an invaluable guide to the background to the subsequent dissension within INE, since it concerns an oppression petition brought in the Nevis courts by the dissident shareholders in the company.
4. One of the other dissident shareholders is the present plaintiff in the Colorado proceedings, Jean Cornec. Mr. Cornec is a mining engineer who had previously worked in Belize identifying its strategraphy. Mr. Cornec and Ms. Morrice were among the five original promoters of the company and were among a handful of Class A shareholders. It would be tedious and unnecessary to chart the dissension which afflicted the company, but many of these difficulties appear to date back to 2002 when Ms. Morrice was introduced to Mr. Tony Quinn by another Class A shareholder, Ms. Shelia McCaffrey.
5. Although Mr. Quinn is not a party to the litigation (and, hence, not represented before me), it is fair to say that his career has engendered some controversy. While it would be inappropriate to dwell on these matters in circumstances where he was not represented before me, the evidence before me nonetheless suggests that he professes what many might regard as rather unorthodox religious views. His supporters appear to subscribe passionately to these views and often participate in what are described as “Educo” seminars run by Mr. Quinn and his close associates. In this regard and to anticipate somewhat, it may be observed that Ms. Tallant, an investigative reporter with the Sunday World newspaper has penned several articles in that newspaper in which she brands Mr. Quinn as a sham who exploits the religious sensibilities of the vulnerable for financial gain, often using hypnosis and other techniques subverting the will and reason. Mr. Cornec (and others) maintain that Ms. Morrice herself has come under what they see as the baneful influence of Mr. Quinn and that she herself has effectively gifted large amounts of stock to him, while also permitting him to use the assets of the company in a wholly unorthodox fashion. Thus, for example, Bannister J. found that some US$1.8m of INE money had been spent in the last few years on security and surveillance personnel, thus allowing Mr. Quinn to hire what the judge described as virtually his own “private army”.
6. Bannister J. also rejected the suggestion that Mr. Quinn was an original Class A shareholder or that he had been validly appointed to the board. It nonetheless seems clear that several members of the Board at least endeavoured to transfer some US$15m. worth of stock to Mr. Quinn in 2007. Bannister J. held that a 2007 operating agreement was invalid, since it trenched on the ownership rights of Class A shareholders and, furthermore, had stipulated that Class B shares were freely transferable only to other members who had completed one of Mr. Quinn’s Educo training courses. This is a classic example of oppression of minority shareholders, since it is impossible to see what legitimate reason there might be for such an eccentric – and there is, I fear, no other word for it – requirement.
7. Bannister J. also found that the company had operated what was described as a loan release programme, whereby INE lent the members funds to be set-off against future profits. This arrangement – unorthodox in itself – was found by the judge to have been operated in a highly partial and selective manner and was “designed to punish INE members of which or of whom Ms. Morrice or Mr. Quinn disapproved”.
8. This forms the general background to the Colorado litigation. In essence, the dissension in the company was damaging to the members. The minority objected strongly to Mr. Quinn’s involvement and considered that his presence as an eminence grise within the company dissuaded outside investment and damaged the share price. From their perspective, they felt that they had no option but to get out of a company which, while very successful, was nonetheless being operated by Ms. Morrice and Mr. Quinn in a partial and autocratic fashion. So far as Ms. Morrice was concerned, the minority – represented by Mr. Cornec – were dissatisfied and determined to cause trouble and there was little alternative but to buy them out.
9. This ultimately led to the agreement reached in August, 2008 whereby Ms. Morrice agreed to purchase Mr. Cornec’s shares in INE for a sum just under US$17.6m. This was financed by an immediate cash payment of $2m and a promissory note for just under $15.6. The loan notes were payable in 12 instalments. Ms. Morrice made two principal payments, but has made no further payments since October, 2008. To date, therefore, Mr. Cornec has received a sum in excess of $4.7m.
10. At the heart of Mr. Cornec’s claim, therefore, is a claim for breach of contract for a liquidated amount just under $13m., together with other related claims. For present purposes, however, what is most critical are the terms of Ms. Morrice’s counter-claim. In essence her case is that Mr. Cornec immediately violated the terms of the share purchase agreement in a material respect, thus entitling her to repudiate the agreement.
11. Critically, the agreement provided for a non-disparagement clause. Clause 5.4 of the Share Purchase Agreement accordingly provided that Mr. Cornec agreed that:-
“He will not in any way, costs to be made or otherwise disclose any disparaging comment, statement of communication about purchaser [Ms. Morrice] or any director or member of INE or their respective affiliates (a “Negative Remark”) either verbally or in writing to any person, entity or authority.”
The Share Purchase Agreement went on to provide that breach of the Clause is deemed to be a material misrepresentation and Clause 6.1.2 in particular provides that:-
“Purchaser may offset any amounts due from Seller to Purchaser under this Section 6 against payments due under the Note.”
Central to Ms. Morrice’s counterclaim, therefore, is the contention that, the non-disparagement clause notwithstanding, Mr. Cornec arranged or organised for critical comments to be made in the media and elsewhere aimed at herself, Tony Quinn and INE. Specifically, Ms. Morrice contends that Mr. Cornec’s attorney, Ms. Katrina Skinner, travelled to Ireland at his behest in November, 2008 and there met a number of individuals who were broadly antipathetic to Mr. Quinn and, by extension, to Ms. Morrice. Particulars were given in the pleadings as to the nature of these contacts from November, 2008 onwards. For present purposes it suffices to say that it is contended Ms. Skinner met with Mr. Garde and Ms. Tallant and that as a result of these contacts critical articles were published by Mr. Garde on the one hand and Ms. Tallant from the Sunday World, on the other.
12. This may be a convenient point to say something about Mr. Garde and Ms. Tallant. Mr. Garde is a director of a charity known as “Dialogue Ireland”. He has a particular interest in new religious movements, especially those where there is reason to suspect that undue psychological pressures or influence have been used over adherents.
13. Ms. Tallant is an investigative reporter with the Sunday World. As already indicated, she has written extensively about Mr. Quinn in that newspaper. Two articles in particular were the subject of some debate in the hearing before me. The first of these is from the 1st March, 2009, which contains a lengthy interview with a disaffected former follower of Mr. Quinn, Marie Lalor. Ms. Lalor contends that she was effectively indoctrinated into believing that Mr. Quinn was the reincarnation of Jesus Christ and that one of his closest followers was the reincarnation of Moses. She further contended that Mr. Quinn described memories of a previous life on the (mythical) island of Atlantis.
14. The second article was published on 6th September, 2009, and is perhaps more directly relevant to the present application. It is headed “Exclusive: ‘Messiah’ Appointed to Company Board by Gullible Disciples – Guru Tony Strikes Oil”,. Underneath the legend ran “Cult Leader “Muscles” in on Followers’ Fortune”. The article then went on to say:-
“Mucky Messiah Tony Quinn has struck oil and is on the verge of becoming a billionaire after muscling his way into the top of a company pumping thousands of barrels of black gold a week. Quinn is hoping he can join the ranks of the Texas barons after a team of his devoted followers appointed him as director of their company. But the controversial mind guru is now at the centre of a massive boardroom bust-up after his bizarre appointment and the influence he appears to have over his fellow directors. Quinn, who some followers believe is Jesus Christ, is facing allegations that he has muscled in on the company which was set up seven years ago by two avid followers of his Educo cult and that he is now creaming the profits for himself. Furious shareholders are also looking for answers about a golden handshake of $20m in free shares he was gifted when he was voted onto the board and whether or not he is now using profits to send to company associates on his own $60,000 a pop seminars. The fight over the oil company “International Natural Energy” (INE) has been brewing since 2007 when Quinn was appointed as director – two years after it struck oil in the impoverished Central American country of Belize. Incredibly, immediately after his appointment he announced on a Dublin stage that only “Eduocists” or his followers could become shareholders.”
The article continues in similar vein, along with quotations from unidentified shareholders questioning the circumstances in which Mr. Quinn came to be appointed as a director of the company. It then went on to give details of the Colorado litigation saying that:-
“When in 2005 the then 82 shareholders were informed that the company had struck high grade oil on its first ever drill, Quinn decided to take a second look at the company. At the time Sheila McCaffrey credited Quinn’s mind technology for the oil find, but since then the battle for control of the control of the company has turned nasty. McCaffrey is no longer a working director and Cornec is currently suing INE for more than $10m. he says he is owed. After agreeing to sell his cut to Morrice, INE are countersuing Cornec saying that a campaign of negative remarks directed at Quinn and Morrice has damaged the value of the company and its attempts to raise finance by selling the shares.”
15. This brings us to the heart of the present application. Essentially, Ms. Morrice contends that Mr. Cornec did not honour his side of the bargain and that he repeatedly violated the non-disparagement claim, not least by arranging for Ms. Skinner to come to Ireland in order to meet Mr. Garde and Ms. Tallant and, indeed, others who were hostile to her, Mr. Quinn and INE. To this end, therefore, Ms. Morrice contends that Mr. Garde and Ms. Tallant are relevant witnesses who ought to be deposed and that this Court should accordingly give effect to the letters rogatory issued by Judge Bronfin of the District Court of Denver on 31st May, 2012.
The nature of the application under the Foreign Tribunals Evidence Act 1856
16. The first issue which arises was already the subject of a ruling by me in the course of the proceedings, namely, the status of the original ex parte order. The present application comes before me formally as a motion on the part of Mr. Garde and Ms. Tallant to set aside an order made by me ex parte pursuant to s. 1 of the Act of 1856. The application is made ex parte precisely because that is the procedure contemplated by the Act of 1856 and Ord. 39, rr. 39-44 RSC. While I duly made the orders ought sought, I duly made it clear at the time that the order simply had a provisional status and that the moving party (Ms. Morrice) would carry the burden of making the application afresh in the event that the addressees of the order (Mr. Garde and Ms. Tallant) sought to have it set aside.
17. The Act of 1856 is, of course, a pre-Constitution statute which must, where necessary be read in a fashion which would make it conformable to the modern understanding of the requirements of fair procedures as prescribed by Article 40.3. It is absolutely clear that the courts cannot constitutionally make an order ex parte finally affecting the rights of the parties. An abundance of contemporary authority attests to this point: see, e.g., the judgment of Keane C.J. in DK v. Crowley [2002] 2 I.R. 744, that of Finlay Geoghegan J. in Chambers v. Keneflick [2005] IEHC 402, [2007] 3 I.R. 526 and my own judgments in Doyle v. Gibney [2011] IEHC 10 and Re Custom House Capital Ltd. (No.1) [2011] IEHC 399.
18. It was for this reasons that I indicated that the ex parte procedure did not and could not finally affect the rights of Mr. Garde and Ms. Tallant and the fact that an initial order was made in favour of Ms. Morrice created no presumption in her favour.
19. The power to grant international assistance via the letters rogatory is, of course, a discretionary one. Naturally, in the interests of the international judicial comity, this Court will endeavour to give assistance where at all possible to requests of courts from foreign states and, as Denham J. put it in Novell Inc. v. MCB Enterprises [2001] 1 IR 608, it should “be slow to refuse such an order.” Nevertheless, before any such order could properly be granted, it would be necessary to establish that (i) the evidence proposed to be taken is relevant to the foreign proceedings; (ii) the application is not oppressive; (iii) the grant of the request would not override any established privilege or protection available to the prospective witness and (iv) the evidence so taken on commission is itself admissible under the law of the requesting state. The applicant for such judicial assistance must satisfy all four of these conditions. I propose now to consider each of these conditions.
Is the evidence requested relevant to the foreign proceedings?
20. In my view, the evidence sought is, subject to one major qualification, clearly relevant to the Colorado proceedings. While the ultimate meaning and effect of the non-disparagement clause will be a matter for the Denver courts, on any view, it prevents Mr. Cornec and his agents supplying information which is critical of INE and its members to a journalist such as Ms. Tallant or a person in the position of Mr. Garde. There seems little doubt on the evidence but that, for example, Mr. Cornec’s attorney and agent, Ms. Skinner, travelled to Ireland for this purpose and that there were subsequent contacts (direct and indirect) between Mr. Cornec, Ms Skinner and others with Ms. Tallant and Mr. Garde. Thus, for example, e-mail correspondence which was exhibited in the proceedings is strongly suggestive of the fact that assistance was given to Ms. Tallant to enable her to write the story regarding the INE litigation and Ms. Morrice and Mr. Quinn which was published in September, 2009.
21. All of this suggests that Ms. Tallant and Mr. Garde are highly relevant witnesses to the Denver litigation so far as the counter-claim on the non-disparagement clause is concerned. Counsel for Mr. Garde, Mr. O’Tuathaill SC, argued that as Mr. Garde had only written about Mr. Quinn, the former’s evidence should not be regarded as relevant. This was because – or so Mr. O’Tuathaill SC argued – Bannister J. had found in his judgment in SM Life Ventures that the appointment of Mr. Quinn as a director was invalid, as was – it would appear – the allocation of Class A shares to him. Given that so far as Irish conflict of law rules are concerned, all matters concerning the validity of the appointment of officers and the transfer of shares fall to be determined by the court of the place where the company is domiciled, I am bound by these findings of Bannister J. in the East Caribbean Supreme Court. Nevertheless, it also seems clear from that judgment that Mr. Quinn remains a Class B shareholder – indeed, Bannister J. said as much – and, hence, a member of INE. While Mr. O’Tuathaill SC argued that it was not clear when Mr. Quinn acquired these shares, it seems evident that the transfer to Mr. Quinn pre-dated the 2008 agreement and is therefore prima facie covered by the non-disparagement clause.
22. While Mr. Garde and Ms. Tallant are relevant witnesses it must be observed that some of the questions contained in the letters rogatory were directed to inquiries about information supplied by Mr. Garde and Ms. Tallant respectively to Ms. Skinner.
23. However, the supply of information by either Mr. Garde or Ms. Tallant is not material to any possible breach of the non-disparagement clause and I would propose, in any event, to disallow these questions as irrelevant.
Oppression
24. Both Mr. O’Moore SC (for Ms. Tallant) and Mr. O’Tuathail SC (for Mr. Garde) argued that the making of these orders for judicial assistance would be oppressive of their clients. As Denham J. made clear in Novell, the court may decline to grant international judicial assistance on grounds of oppression. What, then, might constitute the oppression in question?
25. The oppression was said to take a variety of forms. So far as Ms. Tallant was concerned, Mr. O’Moore S.C. pointed to two defamation proceedings which Mr. Quinn had issued against the Sunday World arising (one must infer) from articles she had written. The first of the proceedings had been issued and served in 2009, but had been otherwise allowed to lie fallow. The second set of proceedings has apparently been issued in 2011, but has yet to be served.
26. Even if one assumes that these proceedings are still live – although I am inclined to agree with, counsel for Ms. Morrice, Mr. O’Callaghan S.C. who submitted that they should properly be regarded as dormant – I cannot see that their existence would in itself make the present application oppressive. I pass over for present purposes the fact that the proceedings are in the name of Mr. Quinn alone, given the closeness of the business relationship between himself and Ms. Morrice. The question, rather, is whether the very existence of the defamation proceedings would make it unfair for Ms. Tallant to be required to give evidence in aid of the Colorado proceedings.
27. I cannot conclude that it would. After all, the issues are fundamentally different ones, even if there is some overlap in the dramatis personae and the factual background. Here the simple question is whether Ms. Skinner (or others persons acting in concert with Mr. Cornec) met with Ms. Tallant with a view to imparting information critical of INE, Ms. Morrice or Mr. Quinn. The issues in the defamation proceedings are much more complex and would (so far as March, 2009 article was concerned) presumably traverse issues such as whether Mr. Quinn claims to be the reincarnation of Jesus or to have recollections of a past life on Atlantis. Any defamation proceedings concerning the September 2009 article would relate to many of the issues dealt with by Bannister J. in SM Life Ventures and thus would encompass the disputes involving the shareholders in INE.
28. This is fundamentally different, therefore, than the facts presented in Novell, a case where allegations of fraud were simultaneously being pursued against the respondents in proceedings both in Ireland and in Utah, with Denham J. concluding ([2001] 1 IR 608, 625) that it would:-
“In all the circumstances be oppressive to permit the applicant to examine the respondents in advance of the hearing of the fraud action against them in Ireland.”
29. As I have already indicated, I consider that the present case is fundamentally different, given the limited nature of the evidence sought to be tendered. Nor can it realistically be said that the present application represents some contrivance on the part of Ms. Morrice to secure this evidence as an indirect means of assisting Mr. Quinn in his defamation proceedings. While I agree that the application would have to be regarded as oppressive if that were her main motive in moving this application, I am nevertheless convinced that the present application is bona fide and is designed to secure the evidence of witnesses who can give relevant evidence in aid of the Colorado proceedings.
30. This general point was also made on the part of Mr. Garde, since it was said that there was such antipathy between himself and Mr. Quinn and his supporters (including Ms. Morrice) as would make the application oppressive. It is true that this antipathy is mutual and it is scarcely concealed. Yet this does not in itself make the application oppressive, if (as here) there are independent reasons (namely, the materiality and relevance of the evidence of the prospective witnesses) to justify the making of the application.
31. Mr. O’Tuathaill SC also emphasised that his client was an expert on religious cults and that it was oppressive to coerce an expert to give testimony where he did not freely consent to this procedure. It is true that in a leading English authority on the point, Seyfang v. G.D.Searle & Co. [1973] Q.B. 148, 152 Cooke J. agreed that the courts “will not as a general rule require an expert to give expert evidence against his wishes in a case where he has no connection with the facts or the history of the matter in issue”. That statement must, however, be understood in its proper context.
32. In that case the applicant was suing the manufacturers of contraceptive pills in the United States for negligence, claiming that she having developed thrombo-phlebitis as a result with horrific personal consequences. To that end the US courts had issued letters rogatory directed at securing the testimony of three medical experts, all of whom were based in the UK and who had done research for the UK Medical Research Council on the possible link between the administration of the contraceptive pill and thrombo-phelibitis.
33. While Cooke J. accepted that s.1 of the Act of 1856 applied to expert testimony, he concluded that it would be oppressive to require an expert to give testimony which might amount to a breach of confidence and “where the preparation of the evidence required of him would require considerable time and study” and in this regard the judge distinguished between witnesses as to fact and expert witnesses. While I respectfully agree with this analysis, it must nonetheless be recalled that Mr. Garde’s testimony is not here required qua expert. Rather his testimony is sought as a witness as to fact, whether Ms. Skinner (and others) spoke with him and briefed him on the involvement of Mr. Quinn in the affairs of INE. For these reasons, the principles articulated with regard to expert testimony articulated by Cooke J. in Seyfang do not apply to the present case.
34. For these reasons, therefore, I would reject the argument based on oppression.
Should Ms. Tallant be obliged to reveal her sources?
35. I now turn to the question of whether, as a matter of Irish law, a court could or would oblige a journalist to disclose her sources in the circumstances of the present case. Ms. Tallant objects in principle to being compelled to give evidence since it would (or might) disclose her sources. She further contends that the giving of evidence in this fashion under compulsion would inhibit her in her vital task of collecting and assembling material for future publication in her role as a journalist.
36. Before considering this argument, I should record that the parties were agreed that the three relevant Irish authorities on point were Re Kevin O’Kelly (1974) 108 I.L.T.R. 97, Mahon v. Keena [2009] IESC 64, [2010] 1 IR 336 and Walsh v. Newsgroup Newspapers Ltd. [2012] IEHC 353. I first propose to examine these three decisions and then to proceed to apply the principles contained therein to the facts of the present case.
37. The decision of the Court of Criminal Appeal in Re Kevin O’Kelly is one which has, I think, has not been fully understood in the intervening years. The background to this case was as follows. The late Mr. O’Kelly was a well-known RTE broadcaster of the highest personal integrity. He had then recently interviewed Sean MacStiofáin, the then soi disant “Chief of Staff” of an illegal organisation. This interview was then broadcast on RTE – as both interviewer and interviewee had intended – and, indeed, the main purpose of the interview was to allow Mr. MacStiofáin in his capacity as “Chief of Staff” to convey the views of the illegal organisation in question to the public at large.
38. At Mr. MacStiofáin’s subsequent trial for membership of that organisation, Mr. O’Kelly was asked to confirm Mr. MacStiofáin’s identity as the voice on the recorded tape. Mr. O’Kelly refused, citing journalistic privilege. The Special Criminal Court adjudged him to be in contempt of court and the Court of Criminal Appeal later heard an appeal against sentence only and, as Walsh J. stressed in his judgment, Mr. O’Kelly did not in fact even appeal his conviction.
39. Against that background the comments of Walsh J. regarding the scope of journalistic privilege with regard to their sources must be adjudged to be strictly obiter. But Walsh J. was surely correct in saying that, subject to an exception I will consider in a moment, no journalistic privilege could have attended Mr. O’Kelly’s evidence precisely because the open identification of Mr. MacStiofáin as “Chief of Staff” was itself an intrinsic part of the entire broadcast. As Walsh J. put it ((1974) 108 I.L.T.R. 97, 101):-
“In fact, the whole value of the publication of the interview from Mr. O’Kelly’s point of view depended upon the fact that the persons to whom the interview would be published would be made aware that the person interviewed was Mr. Sean MacStiofáin.”
40. Indeed, it may be observed in passing that a lawyer could not assert legal professional privilege were he or she to be placed in a somewhat analogous situation. Thus, in Cullen v. Wicklow County Manager [2010] IESC 49, [2011] 1 IR 152 the Supreme Court held that a solicitor on record for a party to litigation cannot assert legal professional privilege over the identity of her client, since to do so would be inconsistent with the very act of taking proceedings.
41. In these circumstances, a journalist could only possibly assert privilege where the identity of the person in the broadcast was itself confidential and withheld from the listeners or viewers, such as might occur where, for example, the interview was with the victim of a sexual assault. It is against that general background that the decision in O’Kelly must be understood and given these particular facts, the entire argument based on journalistic privilege was entirely misplaced to begin with.
42. While I have thus far loosely spoken of a journalistic privilege, there is, in fact, in strictness, no such thing. The protection is rather the high value which the law places on the dissemination of information and public debate. Journalists are central to that entire process, a point expressly recognised by Article 40.6.1.i of the Constitution itself when it recognises “the rightful liberty of expression” on the part of the press, albeit counter-balanced by the stipulation that this rightful liberty shall not be used to undermine “public order or morality or the authority of the State.” Perhaps these constitutional fundamentals have been overlooked at times, in part possibly because the syntax and drafting of this particular clause is (uncharacteristically) awkward given that the critical proviso is somewhat obscured by being placed within a subordinate clause. The Irish language version is actually much clearer than its English language counterpart, since the privileged status of the organs of public opinion is more elegantly described, not least given that it is set out in a stand alone sentence at the end of the relevant second paragraph.
43. Irrespective, however, of the languages used, the constitutional right in question would be meaningless if the law could not (or would not) protect the general right of journalists to protect their sources. This would be especially true of the particular example of that rightful liberty afforded by Article 40.6.1.i which is expressly enumerated therein – criticism of Government policy (“tuairimí léirmheasa ar bheartas an Rialtas”) – if no such protection were available.
44. But this right is not absolute or inviolable. In that respect, this protection differs in one key respect from legal professional privilege which, once applicable, cannot be overridden by a court by reference to some general balancing test based on the public interest. This, in essence, is what Walsh J. said in O’Kelly when he commented that:
“There may be occasions when different aspects of the public interest may require a resolution of a conflict of interests which may be involved in the disclosure or non-disclosure of evidence but if there be such a conflict, then the sole power of resolving it rests with the courts.”
45. Similar views were expressed by Fennelly J. in Mahon v. Keena ([2010] 1 IR 336, 363):-
“While the present case does not concern information about the commission of a serious criminal offences, it cannot be doubted such a case could arise. Who would decide whether the journalist’s source had to be protected? There can be only one answer. In the event of conflict, whether in a civil or criminal context, the courts must adjudicate and decide, while allowing all due respect to the principle of journalistic privilege. No citizen has the right to claim immunity from the processes of the law.”
46. Yet the public interest in ensuring that journalists can protect their sources remains very high, since journalism is central to the free flow of information which is essential in a free society. This is all underscored and tacitly complemented by the entire constitutional edifice, such as the democratic nature of the State (Article 5); the accountability of the executive branch to the Dáil (Article 28.4.1) and the provisions in relation to elections and referenda. I may venture here to repeat my comments in Doherty v. Referendum Commission [2012] IEHC 211 to the effect that the referendum process presupposes that the citizenry “will engage in robust political debate so that the forces of deliberation will prevail over the arbitrary and irrational so that, in this civic democracy, reasoned argument would prevail in this triumph of discourse”. If journalism and the media did not enjoy at least a general protection in respect of their sources, that robust political debate – a sine qua non in any democratic society – would be still born. Only the naïve would suggest otherwise.
47. In passing, it might be observed that while Article 10ECHR does not in terms privilege the media in the same way as Article 40.6 does, yet the importance of press freedom has been a cornerstone of the jurisprudence of the European Court of Human Rights since at least the judgment in Sunday Times Ltd. v. United Kingdom (1979) E.H.R.R. 1 and confirmed in ringing terms in Goodwin v. United Kingdom (1996) 22 EHRR 123, 143. The protection of journalistic sources is, subject to appropriate exceptions, accordingly, regarded as a core value protected by Article 10ECHR.
48. This is perhaps a convenient place to consider the decision of the Supreme Court in Mahon v. Keena, where the general extent of the Article 10ECHR right post-Goodwin on the part of journalists to protect their sources was expounded. All parties were agreed that in the light of the Supreme Court’s subsequent decision in McD. v. L. [2009] IESC 81, it must be acknowledged that Article 10ECHR is not, as such, directly effective in Irish law, but rather has effect only under the conditions actually specified in the European Convention of Human Rights Act 2003 (“the Act of 2003”). Additionally, as a consequence of the Supreme Court’s decision in Carmody v. Minister for Justice and Equality [2009] IESC 71, [2010] 1 ILRM 157 this Court is first required to examine the question presented for resolution under the terms of the Constitution. As Murray C.J. noted in Carmody, is only that in the event that the Constitution cannot avail the litigant who pleads that his or her constitutional rights have been infringed that the Court can then turn to a consideration of the position under the Act of 2003.
49. While this is the sequence which is prescribed in such cases by Carmody, in truth it hardly matters in this case, since the overlap between the two documents with regard to the role of the media is virtually a complete one, even if allowance is made for the fact that, unlike Article 40.6.1, the text of Article 10 ECHR does not actually seek to confer on the media a special or privileged position in terms of public debate or in criticism of government policy. In both cases, the approach is the same: has the case for the restriction on or overriding journalistic privilege – I am here returning to the convenient, if slightly inaccurate, shorthand – been convincingly established?
50. In Mahon the issue was whether the two Irish Times journalists in question could claim privilege from non-disclosure in respect of a document which originally emanated from the Mahon Tribunal raising questions about the finances of the then Taoiseach and suggested that he had received certain payments in an irregular manner. This document had been sent to them anonymously and on an unsolicited basis, but it formed the basis of a leading story in The Irish Times on 21st September 2006. The publication of that story certainly engaged the principle of criticism of Government policy and it is difficult to think of anything more central to a consideration of the public interest in publication.
51. The journalists in question had, however, destroyed the document lest its production might assist in identifying the source. This was the single factor which this Court considered had weighed heavily against the journalists when they sought to invoke journalistic privilege to resist the making of orders compelling them to assist the Tribunal in identifying the provenance of the document in question. The Supreme Court disagreed, holding that the case for disclosure had not been “convincingly established” (to use the language of Goodwin). As Fennelly J. put it, where the source was anonymous, the benefit from any disclosure a journalist might be compelled to make is speculative at best.
52. This brings me to a consideration of the last of the three cases, Walsh v. News Group Newspapers Ltd. [2012] IEHC 353. The plaintiff in that case is very prominent in popular music circles and he has achieved a near iconic status as a judge of emerging musical talent in a highly acclaimed television series. He sued for defamation following the publication of an article which (falsely) asserted that he had sexually assaulted a young man in a Dublin nightclub. It was not disputed but that the allegations were made by a Mr. Watters and that they were entirely false.
53. More disturbingly, it then appeared that a journalist attached to the defendant newspaper had offered financial inducements to Mr. Watters if he agreed to make a complaint to Gardaí. When the plaintiff sought discovery of all contacts between the journalist and Mr. Watters, the newspaper confirmed that Mr. Watters was not a source. O’Neill J. accepted that newspaper sources generally enjoyed protection in the light of the decision in Mahon v. Keena. He went on to observe:-
“If Mr. Watters is not a journalistic source and if his identity is well established, as it is, the only basis, in my opinion, upon which journalistic privilege in respect of communications between the defendants and Mr. Watters could rest would be if it were shown that a disclosure of the content of the communications between Mr. Watters and the defendant could lead to the disclosure of another source either in respect of the story the subject matter of these proceedings or other investigations conducted by the defendants’ journalists. Thus, discovery should be made in respect of communications between the defendants and Mr. Watters unless the defendants can assert privilege on the basis that these communications will disclose another source. If necessary, the court can inspect these documents to exclude from discovery documents leading to the identification of other sources.”
Should the Court order disclosure where the sources have been identified or least are identifiable?
54. This brings us directly to the critical question: should the Court order Ms. Tallant to give evidence in circumstances where it is more or less accepted who the identity of her sources are, or, at the very least, that their identity can be discerned from the material exhibited in both the Colorado proceedings and in the present application. Ms. Tallant has, in fact, sworn an affidavit in the Colorado proceedings in June 2010 in which she admitted that Ms. Lalor was her source in respect of the first article. So far as the second article is concerned, Ms. Tallant stated:-
“The first article I wrote about Mr. Quinn’s involvement in International Natural Energy (“INE”) was September 6, 2009. My source for this story was a group of Irish investors in INE who were upset about Mr. Quinn’s involvement in INE. Jean Cornec was not a source for this story.”
55. While Mr. Cornec may not have been a source for this story, there is considerable evidence which suggests that Ms. Tallant has met with other persons who are associated with Mr. Cornec in connection with the publication of material pertaining to INE. Such persons would seem to include Mr. Cornec’s wife, Ms. Frothingham, Ms. Skinner, Ms. Lalor and Ms. Lalor’s son, Mr. Fennelly. Thus, for example, among the correspondence discovered in the Colorado proceedings (and exhibited for the purposes of the present application), is an email from Ms. Lalor to Ms. Skinner on 31st August, 2009, where she states:-
“…Nicola [Tallant] coming down tomorrow so maybe we should call you as you need to brief her before she does that article.”
56. Mr. Cornec, Ms. MacCaffrey and Ms. Frothingham are all listed as recipients of this email. On the 5th September 2009 Ms. Skinner replied to Ms. Lalor (which email was also copied to Mr. Cornec) to the effect that she should wait “until the oil story comes out” and that “this weekend’s story is going to be crazy…just crazy”. This is plainly a reference to the article which Ms. Tallant subsequently authored on 9th September, 2009, dealing with the affairs of INE, Ms. Morrice and Mr. Quinn and of which Ms. Skinner obviously had advance knowledge. All of this strongly suggests that Ms. Tallant was briefed by Ms. Lalor and Ms. Skinner in advance of the September, 2009 article dealing with the affairs of INE and that Mr. Cornec was fully aware of these developments.
57. Against that background Mr. O’Callaghan SC argued forcefully that the jurisprudence from Goodwin onwards merely concerned the identification of sources and that once the sources had been so identified, the privilege simply lapsed. I would, however, incline to approach the matter in a different way and, following the analysis found in the judgment of Fennelly J. in Mahon, I would prefer to weigh the competing interests of the parties before arriving at a conclusion.
58. In the first place, Ms. Tallant has a strong interest in publishing material concerning Mr. Quinn and the affairs of INE. If, as she maintains, Mr. Quinn holds unorthodox religious views and is effectively the leader of a religious cult which has used psychological techniques as a means of controlling gullible adherents, then – to use the language of Article 40.6.1 – the media are clearly entitled to educate public opinion in this regard. This is perhaps especially true if Mr. Quinn were to have access to enormous funds via what appears to be the largesse of some of the founding members of INE.
59. Second, while Ms. Tallant’s evidence would be plainly relevant to the Colorado proceedings, it should be remarked that such evidence is essentially confirmatory of evidence already available to Ms. Morrice through the US depositions and discovery process. In other words, Ms. Morrice already knows that Ms. Skinner and Ms. Lalor spoke with Ms. Tallant shortly in advance of the September, 2009 article. It would be unrealistic to suggest that these discussions did not concern the affairs of Ms. Morrice and Mr. Quinn, thus potentially triggering the application of the non-disparagement clause. Given that this avenue is already open to Ms. Morrice – and she has already successfully availed of it – this weakens the case for disclosure on the part of Ms. Tallant as her evidence – while undoubtedly helpful and confirmatory of other evidence – cannot be said to be essential.
60. Third, it may be recalled that the Colorado proceedings merely involve commercial proceedings, albeit for very significant sums of money. This is not to take from the intrinsic importance of these proceedings, but the public interest in disclosure is not as compelling as would have been the case, for example, where the potential innocence of a third party was at stake in criminal proceedings (cf. here by analogy the comments in this regard of Hardiman J. in Howlin v. Morris [2005] IESC 85, [2006] 2 IR 324).
61. Fourth, it cannot be said that there is any ex ante distinction between the protection of the source on the one hand and the contents of what the source disclosed on the other. In some cases – perhaps a majority – the source will wish to have their identity protected. In other instances, the source will wish to have the contents of what they actually said protected, even if they been identified as a source for the article. In both cases, the public interest in protecting the journalist from compelled disclosure is very high, since the exploration of the contents of any discussions with the source also has the ability significantly to hamper the exercise of freedom by the journalist in question.
62. Moreover, unlike the situation in Walsh, the letters rogatory are directed to communications between the journalist and her sources. By contrast, in Walsh the complainant who had made the false allegation had been publicly identified and was not a source. Furthermore, Mr. Walsh’s interest in vindicating his good name in the wake of a malicious allegation was exceptionally high.
63. Weighing all these factors, I am not persuaded that the case for compelling Ms. Tallant to give evidence has been, in the words of the European Court in Goodwin, “convincingly established.” Given that the questions posed in the letters rogatory inevitably probe the identity of her sources and the information conveyed to her by those sources as part of a core journalistic activity in respect of which she could properly decline to answer if those questions were posed to her in that form and in those circumstances in an Irish court, I would accordingly decline to give effect to the letters rogatory so far as Ms. Tallant is concerned.
64. Here it may be noted that s. 5 of the Act of 1856 preserves the privileges and protections otherwise available to the witness in purely domestic proceedings. Given the circumstances of the present case, as Ms. Tallant could invoke the protections afforded by Article 40.6.1 (and, for that matter, were it necessary to do so, Article 10 ECHR) to resist questioning directed to identifying the contents of information supplied to her as a precursor to writing the articles in question, it follows equally that she cannot be compelled to do so by the enforcement of the letters rogatory.
Whether the court should order Mr. Garde to give evidence
65. I now turn to the position of Mr. Garde. While Mr. Garde is not a journalist in the strict sense of the term, it is clear from that his activities involve the chronicling of the activities of religious cults. Part of the problem here is that the traditional distinction between journalists and laypeople has broken down in recent decades, not least with the rise of social media. It is probably not necessary here to discuss questions such as whether the casual participant on an internet discussion site could invoke Goodwin-style privileges, although the issue may not be altogether far removed from the facts of this case.
66. Yet Mr. Garde’s activities fall squarely within the “education of public opinion” envisaged by Article 40.6.1. A person who blogs on an internet site can just as readily constitute an “organ of public opinion” as those which were more familiar in 1937 and which are mentioned (but only as examples) in Article 40.6.1, namely, the radio, the press and the cinema. Since Mr. Garde’s activities fall squarely within the education of public opinion, there is a high constitutional value in ensuring that his right to voice these views in relation to the actions of religious cults is protected. It does not require much imagination to accept that critical information in relation to the actions of those bodies would dry up if Mr. Garde could be compelled to reveal this information, whether in the course of litigation or otherwise. It is obvious from the very text of Article 40.6.1 that the right to educate (and influence) public opinion is at the very heart of the rightful liberty of expression. That rightful liberty would be compromised – perhaps even completely jeopardised – if disclosure of sources and discussions with sources could readily be compelled through litigation.
67. It follows, therefore, that Mr. Garde has a similar interest to that of Ms. Tallant in ensuring that his sources are likewise protected. Of course, just as with Ms. Tallant, he is plainly a relevant witness to the Colorado litigation. Ms. Skinner (and others associated with Mr. Cornec) also seems to have either met with or corresponded with him. But his evidence would also be substantially confirmatory of material already in possession of Ms. Morrice. There are, moreover, no strong competing arguments to the contrary which would weigh against the public interest in ensuring that Mr. Garde is free from disclosing his sources or the contents of these discussions.
68. Applying, in essence, therefore, the same balancing test as already applied in the case of Ms. Tallant, I would hold that Mr. Garde is entitled to assert an immunity from disclosure in the present case.
The position of journalists under Colorado law
69. In view of the conclusions I have just reached, it would not seem to me to be necessary or desirable that I should express a view on the question of foreign law presented before me, namely, the construction of Colorado’s press freedom statute and whether Ms. Tallant and Mr. Garde would have been able to avail of it in order to assert a journalistic privilege conferred by statute.
Conclusions
70. In conclusion, therefore, I respectfully decline to give effect to the letters rogatory for the reasons stated in this judgment.
Approved: Hogan J.
Murphy v. Independent Radio and Television Commission
[1997] IEHC 71; [1999] 1 IR 12; [1997] 2 ILRM 467 Judgment of Mr. Justice Geoghegan delivered the 25th day of April, 1997
1. This is an application for Judicial Review of a decision of the first named Respondent dated the 31st day of March, 1995 refusing to permit the Applicant to transmit a particular advertisement on the radio station known as “98 FM”. I should state at the outset that the owners of “98 FM” had no objection to broadcasting the advertisement if they were satisfied that they were lawfully entitled to do so but they were informed by the first named Respondent, being the relevant statutory authority, that they were prohibited from doing so by virtue of Section 10(3) of the Radio and Television Act, 1988. That subsection provides that:-
“No advertisement shall be broadcast which is directed towards any religious or political end or which has relation to an industrial dispute”.
2. The advertisement in question read as follows:-
“What think ye of Christ? Would you, like Peter, boldly say he is the Son of the living God, have you ever exposed yourself to the historical facts about Christ, the Irish Faith Centre are presenting for Easter Week an hour long video by Dr. Gene Scott, PhD on the evidence for the resurrection from Monday, 10th to Saturday, 15th April every night at 8.30 and Easter Sunday at 11.30 a.m. and also live by satellite at 7.30 p.m., The Irish Faith Centre, 360A North Circular Road, Phibsboro”.
3. The Applicant seeks to impugn the refusal to broadcast this advertisement on the grounds:-
(1) that it does not breach Section 10(3) of the 1988 Act;
(2) that if contrary to the Applicant’s contention it does breach that subsection, then the subsection is invalid having regard to the Constitution.
4. Although Counsel for the Applicant relies on both arguments, I think it is fair to say, that the greatest stress was on the second. In support of the first argument Counsel for the Applicant suggests that the advertisement is in essence an advertisement for a showing of a video and the showing of a live communication by satellite and that it is not directly an advertisement for some religious belief or doctrine. On any fair reading of this advertisement, I think that one would have to interpret it as being more than a mere notification of an event. The question, therefore, of whether notification of a religious event necessarily infringes Section 10(3) of the Radio and Television Act, 1988 does not arise in this case and that being so I do not think it would be advisable or proper for me to make any decision on it. What I am deciding is that this particular advertisement does infringe Section 10(3) or at the very least that the first named Respondent was entitled to take the view that it did. The advertisers are called in the advertisement “The Irish Faith Centre”. It is perfectly obvious from the whole tenor of the advertisement that the listener is being led to at least favourably consider the proposition that Christ is the Son of the living God and that the traditional “beliefs” about Christ are historical facts. In my opinion, the advertisement is a great deal more than a mere notification of an event. Given that Section 10(3) itself has a broad thrust, I think that the advertisement would clearly infringe the subsection.
5. I turn, therefore, to consider whether the subsection is unconstitutional. Four different provisions of the constitution are relied on by the Applicant. These are:-
(1) Article 40(3)(1) as conferring the unenumerated right to communicate as identified by Costello P. in Attorney General -v- Paper Link Limited 1984 ILRM 373.
(2) Article 40(6)(1) which confers “the right of the citizens to express freely their convictions and opinions”.
(3) Article 44(2)(1) which guarantees freedom of conscience and the free profession and practice of religion to every citizen subject to public order and morality.
(4) Article 44(2)(3) which prohibits the imposition by the State of any disabilities or the making of any discrimination on the ground of religious profession, belief or status.
6. I propose to deal with the Article 44 arguments first as they present less difficulty than the arguments based on Article 40. In my view, Section 10(3) of the 1988 Act in no way impedes freedom of conscience or the free profession or practice of religion. As Counsel for the Attorney General has pointed out, the true meaning of Article 44(2)(1) has been explained by Walsh J. in McGee -v-Attorney General 1974 IR 284 at 316, Walsh J. observed as follows:-
“The whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion. Within that context, the meaning of Section 2, subsection 1 of Article 44 is that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience insofar as the practice of religion is concerned, and subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience…..what the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one’s conscience insofar as the exercise, practice or profession of religion is concerned”.
7. The prohibition on this advertisement is not an attack on freedom of conscience or the free practice of religion. Indeed if anything the advertisement might be an intrusion on the quiet possession of religious beliefs.
8. Nor does it appear to me that the refusal of such an advertisement as this could constitute a discrimination on the ground of religious profession, belief or status as prohibited by Article 44(2)(3). The meaning of this constitutional provision has also been elaborated on by Walsh J. in Quinn Supermarket -v- Attorney General 1972 I.R. 1. He explains that what is prohibited by the provision is the creation of a difference between persons or bodies or the distinguishing between them on the grounds of religious profession, belief or status. An advertisement of this kind would have been prohibited no matter what religion was involved and there is therefore no question of religious discrimination. I am satisfied that insofar as the Applicant relies on Article 44 to impugn the validity of Section 10(3) of the 1988 Act having regard to the Constitution, the application must fail.
9. I now turn to the much more difficult question of whether either of the provisions relied on in Article 40 by the Applicant gives him the right to have his advertisement broadcast and that that being so the subsection in the 1988 Act is repugnant to the Constitution. I think it appropriate to deal with the arguments based on Article 40(3)(1) and the arguments based on Article 40(6)(1) together. I do this because I do not accept that the two constitutional provisions are totally independent of one another. In some of the arguments put forward in this Court it seemed to be suggested that as a consequence of Attorney General -v- Paper Link Limited 1984 ILRM 373 the right to communicate factual matters arose from Article 40(3)(1) but that the right to communicate convictions and opinions arose from Article 40(6)(1). If this analysis was correct, it would seem to give rise to an anomaly. I cannot see any rational basis why the Constitution would confer an express right to communicate opinions but an implied or unenumerated right to communicate information. The key passage in Costello P’s. judgment in the Paper Link case does not appear to me to support the view that there are two distinct rights of communication conferred by different provisions of the Constitution. The passage in question reads as follows at p.381:-
“It seems to me that as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The question of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40(6)(1)(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions, I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40(3)(1)”.
10. I think that in that passage Costello P. was regarding Article 40(6)(1)(i) as not conferring a new right but rather giving special protection to a particular form of exercise of the right conferred by Article 40(3)(1). At any rate it would seem to me that the wording of Article 40(6)(1). supports that interpretation independently of any authority and I will return to it later on in this judgment.
11. It seems clear from his judgment in Oblique Financial Services Limited -v- The Promise Production Company Limited 1994 1 I.L.R.M. 74 that Keane J. takes a similar view. He stated as follows:-
“Article 40(6)(1) is concerned not with the dissemination of factual information, but the rights of the citizens, in formulating or publishing convictions or opinions, or conveying an opinion; and the rights of all citizens, including conveying information, arises in our law, not under Article 40(6)(1) but from Article 40(3)(1).”
12. The use of the words “including conveying information” would seem to suggest that Keane J. considered, as I do, that Article 40(3)(1) was the constitutional source of the basic right to communicate whether it be information or opinion.
13. I return briefly to Article 40(6)(1)(i). I have come to the conclusion that that particular provision has no relevance to this case. I have come to that view for two quite distinct reasons. In the first place the proposed advertisement although it does implicitly contain matters of opinion has as its principal purpose the communication of information. But secondly and perhaps more importantly Article 40(6)(1)(i) would not seem to apply to every expression of opinion. Article 40(6)(1)(i) would not seem to have any application to the right of a private citizen to express private opinions with a view to influencing some other private person or persons. It would not be advisable to attempt a precise definition of what the paragraph does cover but I think that it is mainly directed at protecting the expression of opinions whether deriving from groups or otherwise with a view to influencing public opinion. Paragraphs (i), (ii) and (iii) in Article 40(6)(1) would each seem on a superficial view to be dealing with completely different matters and it might be suggested that there was no logic in including them all in the same subsection. But I think that the framers of the Constitution quite deliberately inserted them in the same subsection and that being so it would be wrong to interpret paragraph (i) except in the context of the entire subsection of the article which reads as follows:-
“1. The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
(i) The right of the citizens to express freely their convictions and opinions .
The education of public opinion being, however a matter of such grave importance to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their right for liberty of expression, including criticism of government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, vicious, or indecent matter is an offence which shall be punishable in accordance with law.
(ii) The right of the citizens to assemble peacefully and without arms.
Provision may be made by law to prevent or control meetings which are determined in accordance with law to be calculated to cause a breach of the peace or to be a danger or a nuisance to the general public and to prevent or control meetings in the vicinity of either House of the Oireachtas.
(iii) The right of citizens to form associations and unions.
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
2. Laws regulating the manner in which the right of forming associations and unions and the right of free assembly may be exercised shall contain no political, religious or class discrimination.”
14. The following points of importance need to be considered in interpreting Section 6 of
Article 40:-
(1) The Section does not create any new rights but rather assumes their existence. In the case of the right of the citizens to express freely their convictions and opinions this is merely an aspect of the unenumerated personal right to communicate contained in Article 40(3)(1). Section 6 contains special provisions for the guarantee by the State of the exercise of the particularised rights set out in it.
(2) The use of the word “citizens” within each of the paragraphs contained in Article 40(6)(1) is, in my opinion, no accident. The Article does not speak of the right of the citizen to express his or her convictions and opinions but rather the right of the citizens to express freely their convictions and opinions. The two other rights referred to in Paragraph (1) are both rights which of their nature involved plurality, one being a right of the citizens to assemble and the other being a right of the citizens to form associations and unions.
(3) When dealing with the right of the citizens to express freely their convictions and opinions the constitutional provision expressly refers to “the education of public opinion”.
15. For all these reasons, I conclude that the aspect of the fundamental right to communicate arising under Article 40(3)(1) which is referred to in Article 40(6)(1)(i) is the influencing of public opinion. An advertisement on radio whether it be directed towards the purchase of a soap powder or towards the attendance of a meeting is addressed to the individual listener rather than directed towards influencing public opinion. I do accept that a political advertisement might have to be regarded differently. Arguably, it is designed to influence both public opinion in general and the individual voter. But this case does not concern a political advertisement but rather an alleged religious advertisement. It was intended, in my view, to be addressed to the individual listener and if I am right in my foregoing analysis, I do not think, therefore, that Article 40(6)(1)(i) has any bearing on the issues in dispute in this case.
16. I now return, therefore, to Article 40(3)(1). It is established in all the relevant decided cases that the personal rights protected by this Section and paragraph are not absolute and that their exercise may be regulated in the common good. Before developing this theme further, I should make clear that I reject the State’s argument that because of limitation of air waves and other reasons there can be no constitutional right to broadcast and that broadcasting has to be viewed in some special category apart from all other means of communication. That does not seem to be the view of the European Court of Human Rights and in this era of multi-station broadcasting and the further increase projected with the advent of digital broadcasting, there is no reason why broadcasting as such should be isolated in Irish law and placed in a special category. I would prefer an approach which recognised that broadcasting like any other means of communication must be taken into account in considering any particular exercise of the fundamental right to communicate protected by the Constitution.
17. Although the European Convention of Human Rights is not part of Irish municipal law, regard can and should be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right. In this case the solution lies, in my view, in Article 10 of the European Convention. What would be considered to be reasonable limitations under that Article should equally, be considered reasonable limitations under Article 40(3) of the Constitution. The recent Report of the Constitution Review Group recommends amendment of the Constitution so as to conform with Article 10 of the European Convention on Human Rights. But I do not think that there is a serious clash between the Constitution and the Convention in this particular respect. I think that the rights protected by Article 10 of the Convention are for the most point protected by Article 40(3)(1) of the Constitution and that the limitations on the exercise of those rights in the interest of the common good largely correspond to the limitations expressly permitted by Article 10 of the Convention.
18. Article 10 of the European Convention of Human Rights 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
(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 interest 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 of rights of others, by preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
In Attorney General -v- Guardian Newspapers Limited (No.2) 1991 A.C. 109 at 283-284, Lord Goff of Chieveley observed that in the field of freedom of speech there was no inconsistency between the English Common Law and Article 10 of the Convention. Agreement with this view was expressed by Lord Keith of Kinkel in Derbyshire County Council -v- Towns Newspapers Limited 1993 AC 534 at 551. These statements were referred to in the judgments of Kennedy L.J. and McCullough J. of the Divisional Court in Regina -v- Radio Authority , Ex Parte Bull, 1995 3 W.L.R. 572 but McCullough J. went on to point out that while the common law right and the Article 10 right might coincide this only had relevance in the interpretation of an English statute if there was an ambiguity in that statute. I see no reason why the views of the Law Lords should not be adopted and I, therefore, accept that there is no inconsistency between the Irish Common Law and Article 10. But if that is so, it would seem to me all the more obvious that generally speaking there is no inconsistency between the Constitution and Article 10. An Irish statutory provision which offended Article 10 would be unconstitutional in most if not in all circumstances.
19. In the context of broadcasting, the decision of the European Court of Human Rights which is most relevant in this case is the decision in Informationsverein Lentia -v- Austria 17 EHRR 93. In that case, the applicants had been refused broadcasting licences by the competent national authority to set up both radio and television stations in Austria on the basis of national legislation which had set up a public monopoly. They complained of a violation of their freedom of expression as guaranteed by Article 10 of the Convention. The Court held unanimously that there had been a violation of Article 10. It is not necessary to review all the facts of that case which had very little bearing on the facts of this case but two important passages in the judgment which are contained in paragraphs 32 and 35 respectively of the reported case are highly relevant to this case. They respectively read as follows:-
“32. As the Court has already held, the purpose of that provision is to make it clear that States are permitted to regulate by a licensing system the way in which broadcasting is organised in their territories particularly in its technical aspects. Technical aspects are undeniably important, but the grant or refusal of a licence may also be made conditional on other considerations, including such matters as the nature and objectives of a proposed station, its potential audience at national, regional or local level, the rights and needs of a specific audience and the obligations deriving from international legal instruments.
This may lead to interferences whose aims will be legitimate under the third sentence of paragraph 1, even though they do not correspond to any of the aims set out in paragraph 2. The compatibility of such interferences with the Convention must nevertheless be assessed in the light of the other requirements of paragraph 2.”
“35. The Contracting States enjoy a margin of appreciation in assessing the need for an interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the circumstances. In cases such as the present one, where there has been an interference with the exercise of the rights and freedoms guaranteed in Article 10(1), the supervision must be strict because of the importance – frequently stressed by the Court – of the rights in question. The necessity for any restriction must be convincingly established.”
20. A restriction on religious advertising complained of in this case would not seem to fit easily within the exceptions permitted by paragraph 2 of Article 10. It is conceivable that if actual evidence had been called or put on affidavit to the effect that having regard perhaps to the problems in Northern Ireland or for some other reason the State could have proved that such a prohibition was necessary though I rather doubt it. Admittedly, it has been submitted on behalf of the Attorney General that religious advertising would constitute an interference with the right to practise one’s religion and that therefore the restriction was necessary “for the protection of the — rights of others”. But no evidence was adduced in support of this submission.
21. It is clear, however, from paragraph 32 cited above that the licensing system of broadcasting can involve restrictions which go beyond those permitted by paragraph 2. Indeed McCullough J. in Regina -v- Radio Authority Ex Parte Bull cited above expressly refers to Paragraph 32 in the judgment of the Court of Human Rights. At p.591 of the Report he observes as follows:-
“I confess that, in any event, I find difficulty in regarding Section 92 as a significant interference with freedom of speech or, more aptly, with freedom of communication. The matter has not been argued, but I doubt if there is, or should be, any right to subject an unwilling listener to opinions he does not want to hear, least of all perhaps through the medium of political advertising. Freedom of communication surely implies a willing communicator and a willing receiver. No doubt many of those who listen to commercial radio would be content, and perhaps interested, to listen to unsolicited political opinions during breaks for advertisements in the programme to which they are listening, but it would not be true of all. There is much to be said in the public interest for confining such freedom within strict limits. The spoken word is both more compelling and more intrusive than the written. The newspaper reader can immediately turn the page. If the listener switches off he might miss the resumption of his programme, and meanwhile he has to wait. I imagine that it is considerations such as these which lead the European Court of Human Rights to say in Informationsverein Lentia -v-Austria 1994 17 EHRR 93 at 112 that the Court had already held that the purpose of the third sentence in paragraph (1) of Article 10 is to make clear that States are permitted to licence the way broadcasting is organised in their territories and that this may lead to interferences whose aims are legitimate, even though they do not correspond to any of the aims set out in paragraph (2) of the Article”.
22. In this case the restriction is not a condition imposed by the broadcaster nor is it a restriction required of the broadcaster to impose as a condition of his receiving a licence to broadcast. Rather it is a blanket restriction contained in the Act itself. As I have already mentioned there is no evidence that the owners of 98 FM had any objection to inserting the proposed advertisement but the Commission considered they were not entitled to do so having regard to the Act. Whether the restriction be contained in the Act itself or be a condition of a licence it all forms part and parcel of a licensing system as contemplated by Article 10 of the Convention. I think that it would have been reasonable for the Oireachtas to take the view that in Irish society religious advertising on commercial radio might be undesirable in the public interest. For the restriction to be imposed in the context of a licensing system under Paragraph 1 there did not have to be an absolute necessity for the ban as would be required under paragraph 2 of Article 10. It is sufficient, in my view, if there were good reasons in the public interest for the ban. Irish people with religious beliefs tend to belong to particular churches and that being so religious advertising coming from a different church can be offensive to many people and might be open to the interpretation of proselytising. Religion has been a divisive factor in Northern Ireland and this is something which the Oireachtas may well have taken into account. As McCullough J. pointed out, a person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any Oireachtas to have regard to the type of advertisements which might be permitted. The impugned Section enjoys the presumption of constitutionality. It is not obvious to me that a restriction on religious advertising is not a reasonable restriction in the interest of the common good on this particular form of exercise of the right to communicate.
23. Of course it has been suggested on behalf of the Applicant that a blanket restriction is not proportional and that even if some restriction would be reasonable it would have to be less draconian. The absolute restriction according to the argument of Counsel for the Applicant infringes the doctrine of proportionality. I cannot accept this view. On the legislation as it stands there are very few limitations on the right to advertise and in that sense proportionality has already been taken into account. But at any rate, I do not think that one could subdivide religious advertising. Once a reasonable view can be put forward that religious advertising might be undesirable in the public interest, it would be impossible in practice to devise a wording that might have the effect of permitting certain alleged categories of innocuous religious advertising. It is the fact that the advertisement is directed towards a religious end and not some particular aspect of a religious end which might be potentially offensive to the public. I, therefore, hold that the Section is not invalid having regard to the Constitution and that this application for Judicial Review must be refused.
24. I realise that even if I had taken the opposite view it would now be too late to advertise for the particular events intended. But the application would still not have been a moot as presumably the Applicant wants to be in a position on future occasions to have similar type advertisements broadcast on commercial radio and the constitutional validity or otherwise of the statutory provision is of considerable importance to him.
Mahon -v- Post Publications
[2007] IESC 15 [2007] 2 ILRM 1, [2007] 3 IR 338, [2007] IESC 15
JUDGMENT of MR. JUSTICE FENNELLY delivered the 29th day of March, 2007
1. In this appeal, the Planning Tribunal asks the Court to hold that it has power to require that documents which it circulates prior to public hearing of its modules be treated as confidential and to make general orders restraining the defendant and, in effect, all media of communication, from publishing them until they are disclosed at a public hearing.
The Proceedings
2. The plaintiffs are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The Tribunal was established pursuant to an instrument of the Minister for the Environment and Local Government dated 4th November 1997 by virtue of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a resolution passed by Dáil Eireann on 7th October 1997 and by Seanad Eireann on 8th October 1997. The terms of reference of the Tribunal have been amended by a number of subsequent ministerial instruments. I will refer to the plaintiffs as the Tribunal.
3. The defendant is a limited company. It is a subsidiary of Thomas Crosbie (Holdings) Ltd, which publishes “The Examiner.” It also publishes the “Sunday Business Post.”
4. The present proceedings commenced on 17th December 2004 when Finnegan P., on an ex parte application, granted to the Tribunal injunctions in terms set out in a plenary summons issued on 20th December 2004. By notice of motion served for 17th January 2005 the Tribunal applied for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of affidavits, the matter came on before Kelly J. in the High Court. By agreement the hearing of the motion was treated as the trial of the action. There were no pleadings other than the plenary summons. In the absence of a statement of claim or of an order granting leave in judicial review proceedings, the issues must be gleaned from the affidavits filed in respect of the application for an interlocutory injunction. The injunctions sought in the proceedings, and granted by Finnegan P., were:
“An order restraining the Defendant, its servants or agents (and all other persons having knowledge of the granting of the Order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal;
Further or in the alternative an injunction restraining the Defendant its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal
(a) before such information and/or the contents of such document has been disclosed or read at a public hearing of the Tribunal;
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information and/or document.”
5. The Tribunal’s motion was grounded on an affidavit of Ms Marcelle Griffin (hereinafter “Ms Griffin”). Mr Anthony Dinan swore an affidavit on behalf of the defendant and Ms Griffin swore a replying affidavit. A comprehensive summary of the evidence and, to a considerable extent, argument is to be found in the judgment of Kelly J. The entire case depends on the confidentiality of certain documents circulated by the Tribunal.
6. The Tribunal expounded its policy in respect of confidentiality in a protocol of 14th January 1998. The Tribunal appreciated the concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. To protect these “legitimate concerns,” it outlined a number of measures it proposed to adopt. Principally, these were:
7. The Tribunal would return all original documents to their owners on conclusion of its work. In addition:
· All copies of documents containing confidential, commercially sensitive or personal information would be destroyed on conclusion of its work;
· Confidential information not relevant to the inquiry would not be disclosed to any outside party;
· Documents containing both confidential, commercially sensitive or personal information and other information, which was relevant, would have irrelevant information blanked out (“redacted”).
8. The Tribunal protocols on confidentiality are set out in full in the judgment of Geoghegan J. Nonetheless, the Tribunal has, since its establishment, experienced considerable difficulties in respect of unauthorized disclosure of confidential information. The Tribunal considers that such disclosure causes delay and damage to it in its work. Ms Griffin relates, in her affidavit, a number of instances of serious complaints from individuals, who were in communication with it for the purpose of its work and who claimed that their rights had been infringed by such unauthorized disclosure.
9. Ms Griffin describes the Tribunal’s modus operandi, which is by now very well known from various judgments of this Court. It divides its work into a first, investigative stage and a second hearing stage. The Tribunal conducts the first stage entirely in private. The second consists of public hearings. Ms Griffin explains that, in the first stage, the Tribunal seeks statements from persons who may be called as witnesses at public hearings. The confidentiality of this stage is essential to the work of the Tribunal. All those participating are made aware of this stipulation. Persons assisting the Tribunal expect and may demand confidentiality as a condition of their cooperation and will be dissuaded by the publication of “leaked” information in the news media. In addition, and most materially for the purpose of the present appeal, the Tribunal circulates a set of documents or a “brief” some six weeks in advance of the commencement of public hearings in relation to one of its modules. These briefs are circulated to a carefully selected and limited number of persons. The purpose is to enable those persons to prepare for the public hearing. In every case, such persons are expressly notified in writing that the circulation is on a strictly confidential basis. The terms of the confidentiality requirement, as set out in the letter accompanying the documents circulated in October 2004, which gave rise to the present proceedings, was:
“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the documents enclosed, you must seek the consent of the Tribunal prior to doing so.”
10. Ms Griffin describes specific instances of individual complaints arising from leaks. On 10th December 1998, the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, expressing concern at “the continuing publication in the print media of confidential material provided by the Tribunal and circularized by the Tribunal on a strictly confidential basis.” It required an undertaking on the part of each addressee that it would not publish any confidential material which the Tribunal had circulated in confidence. No undertakings were given.
11. On 11th December 1998, the Tribunal sat in public to consider whether to make an order pursuant to the provisions of section 4 of the Tribunals of Inquiry (Evidence) Act, 1979, whose terms I will describe later, against a number of newspapers and broadcasters. The then Sole Member delivered a lengthy ruling on 18th December 1998, reiterating the position already taken that all documentation and information relating to its inquiry work was confidential, indication that it was considering the making of an order against one newspaper company and concluding:
“The Tribunal intends instituting proceedings in the High Court in an effort to prevent any further unauthorized disclosure of confidential Tribunal information.”
12. In late 1998, following complaints from the Tribunal to the Commissioner of An Garda Síochána, a garda investigation into leaks took place. It lasted four months. Ninety eight people were interviewed including four journalists. The journalists refused to cooperate or to reveal their sources of information. Further unauthorized publication in 2001 led to a public statement by the Sole Member.
13. On 24th January 2001, the Sole Member made a public statement at a sitting of the Tribunal expressing “concern about the content of some recently published newspaper articles.” The statement did not specify the articles or their publishers but explained that the Tribunal found it appropriate from time to time to seek discovery of bank records of individuals and companies but that this did not mean that such individuals had been guilty of any impropriety. The Sole Member also said that the Tribunal had recently learned that a memorandum from the legal department of a bank had come into the possession of a national newspaper, but that the newspaper in question had undertaken not to publish the information. On 26th January 2001, the Tribunal wrote to the solicitor for the defendant in reference to publication by Mr Frank Connolly in the Sunday Business Post SIZE=4 FACE=”Times New Roman”> entitled of an article entitled: “Flood Probes TDs’ Bank Accounts.” The letter stated that the article appeared to have been based on documents compiled from a series of letters written to a financial institution by the Tribunal. The letter cited in full the Tribunal’s statement of confidentiality. It complained that the newspaper was undoubtedly aware of that policy and that publication of the article constituted a very serious breach of the confidentiality of the Tribunal.
14. It does not appear from Ms Griffin’s affidavit that any further similar publications occurred between 2001 and October 2004, when the story leading to the present appeal commences. As will become apparent, the injunction sought by the Tribunal does not relate to this material.
15. On 15th October 2004, the Tribunal circulated the brief for its pending “Coolamber” module. It included the confidentiality stipulation quoted above.
16. On 17th October 2004, the Sunday Business Post published two articles, written by Barry O’Kelly, entitled: “Jim Kennedy’s Pipe Dream;” and “Fifty Councillors named in new planning tribunal list.”
17. On 21st October 2004, the Tribunal wrote to Mr O’Kelly at the Sunday Business Post as follows:
“I refer to your article in the Sunday Business Post dated 17th October 2004 entitled “Jim Kennedy’s Pipe Dream.”
I am directed to request that you furnish to the Tribunal:-
1. The identity source or sources of the information contained in your article;
2. Any documentation or other material furnished to you in relation to the article.
Please reply within four working days hereof.”
18. Mr O’Kelly was the author of a further article which appeared in the Sunday Business Post for 24th October 2004, entitled: “Lenihan, Flynn in new payments revelations.” That article included extracts from a confidential statement furnished to the Tribunal by Mr Jude Campion and was accompanied by a photograph of an extract from Mr Campion’s statement. The Tribunal’s date stamp and the word “confidential” also appeared. Ms Griffin has sworn that the statement of Mr Campion, like other Tribunal documents, had been circulated to a limited number of persons, under the usual terms as to confidentiality, on 15th January and 21st October 2004.
19. Ms Griffin draws attention to a particularly disturbing feature of this publication. Mr Campion gave evidence in public at the Tribunal on 14th, 15th and 19th October 2004. During those sittings, the Tribunal directed that the names of three specific persons mentioned in Mr Campion’s statement should not be disclosed but that they be referred to as A, B and C. Mr O’Kelly was clearly aware of this direction. His article said: “The names of the TDs ……were left unsaid at the request of the Tribunal. Quite plainly, Mr O’Kelly was fully aware that the Tribunal regarded as confidential both the statement of Mr Campion and the names of the three TD’s mentioned. The Tribunal had written to the newspaper on 21st October. Mr O’Kelly was blatant in his defiance of the claim of confidentiality.
20. Mr O’Kelly phoned the Tribunal on 26th October 2004 to state that he could not comply with the written request that he name his sources. He was relying on journalist’s confidentiality. The Tribunal received two serious written complaints on behalf of persons who had been circulated with documents over which they claimed to place a requirement of confidentiality. These are cited more fully in the judgment of Geoghegan J. The Tribunal wrote to all recipients of the “Coolamber Brief” seeking to ascertain the source of the leak. All those persons denied that they had been responsible for any disclosure.
21. Correspondence was then exchanged between the Tribunal and solicitors for the defendant. I do not think it is necessary to relate it in detail. The Tribunal unsuccessfully sought disclosure of Mr O’Kelly’s sources. They also asked for an undertaking that the documents in his possession be kept and not destroyed. The defendant’s solicitors took the position that only Mr O’Kelly knew the source of the information and that he relied on journalist’s privilege and that they had conveyed the Tribunal’s request not to destroy the documents to their client. The solicitors informed the Tribunal that the documents had been destroyed by Mr O’Kelly. He asserted that their return to the Tribunal might reveal the source of his information.
22. The Tribunal summoned Mr O’Kelly, Mr Dinan and Mr Richard Martin, solicitor, to appear at a hearing on 1st December 2004. Mr O’Kelly, having confirmed that he had received appropriate legal advice, declined to produce the copy of Mr Campion’s statement, which was in his possession. He said that he had destroyed it. At a subsequent hearing, Mr O’Kelly refused to reveal his sources. Mr Dinan declined to give an undertaking on behalf of the Sunday Business Post, that it would not publish “information or documentation in relation to which it [Sunday Business Post ] is aware that the Tribunal has directed that such information or documentation should remain confidential……”
23. Ms Griffin has sworn, in her grounding affidavit on behalf of the Tribunal that, “if an injunction is not granted against [the defendant] then that newspaper will continue to publish confidential information ……” She continued: “The Tribunal is gravely concerned that, based on its experience to date, some or all of the documents will be deliberately leaked by persons to whom they have been circulated in a deliberate attempt to undermine the Tribunal.” (emphasis added). Thus, the Tribunal makes it clear that it attributes the leaks to the persons to whom it has circulated information. It does not suggest that they come from Tribunal sources.
24. Mr Dinan, in his affidavit on behalf of the defendant contests the jurisdiction of the Tribunal to demand that Mr O’Kelly reveal his sources or to demand that newspapers give undertakings as to future conduct. He disputes that the relevant information is or was confidential or that the Tribunal was entitled to maintain any claim of confidentiality in respect of it. Mr Dinan explains the attitude generally taken by journalists to the revelation of sources. It is that this is a principle which must be maintained in the public interest: “It frequently falls to journalists to reveal matters of which the public ought to be aware, but which journalists have obtained from sources who have provided the same only on the basis of a guarantee that their identity will not be revealed. If that guarantee was broken in any given cases, then the likelihood of other material being provided in future……would become very small indeed.”
25. Mr Dinan went on to swear that the publication of the articles of which the Tribunal complained was in the public interest. He explained that the attitude of the defendant newspaper was that “the decision of the Tribunal to declare a document confidential could not of itself be regarded as determinative of any decision as to whether not to publish. This decision must be made only by the editor of the newspaper in the proper context where all matters are considered.”
26. More generally, Mr Dinan swore:
“I say that the difficulty with the order which the Tribunal is now seeking to have made is that it is attempting to bind the newspaper in future in respect of unspecified documents in circumstances where the newspaper in future might or might not know that any particular ruling on confidentiality has been made by the Tribunal.”
24. Ms Griffin, in her replying affidavit, responds to Mr Dinan’s contention that publication was in the public interest by asserting that the defendant is not motivated by any public interest but rather by the desire to increase circulation.
The High Court Judgment
25. Kelly J, in a comprehensive judgment delivered on 4th October 2005 [2005] IEHC 307, rejected the Tribunal’s application.
26. He was, he said, concerned only with future publications. He noted that there was little factual dispute between the parties. The Tribunal was asserting confidentiality in respect of everything contained in a brief, but made no distinction based on whether information or documents had or had not been obtained on the basis of an assurance of confidentiality. He summarised the Tribunal’s case as follows:
“The Tribunal contends that it has the entitlement to create an obligation of confidentiality in respect of material contained in the brief circulated by it, regardless of the source or nature of the documents or information which it contains. It is that assertion of confidentiality which it seeks to enforce in these proceedings. There can be little doubt of this when one considers the affidavit evidence and in particular paragraph 7 of the replying affidavit of Ms. Gribbin and the form of the orders which I am asked to make. “
27. The defendant, on the other hand contested the power of the Tribunal to direct that documents or information should be confidential, in the manner claimed. Furthermore, it said that the documents do not have the necessary quality of confidentiality. The defendant argued that the reliefs sought were not specific enough, because the documentation or information was not readily identifiable. It submitted, in particular, that an order as sought would fetter its constitutional rights pursuant to Article 40.6.1 of the Constitution.
28. Kelly J commenced his analysis by pointing out that the injunctions were an attempt to restrain an organ of the press from publishing material. Following a review of a number of decisions of the High Court and the Supreme Court with regard to the interpretation of Article 40.6 of the Constitution and of the European Court of Human Rights regarding Article 10 of the Convention, he observed:
“This court recognises the cardinal importance of press freedom. Any restriction on it must be proportionate and no more than is necessary to promote the legitimate object of the restriction. The position can be summarised succinctly by a quotation from the judgment of O’Higgins C.J. in Cullen v. Toibín [1984] I.L.R.M. 577 where he said:-
‘The freedom of the press and of communication which is guaranteed by the Constitution… cannot be lightly curtailed.’
It is against this background of a constitutionally guaranteed entitlement to press freedom coupled with a similar right under Article 10 of the Convention that this application for injunctive relief must be viewed.”
29. Kelly J. then proceeded to consider the entitlement, claimed by the Tribunal, to assert a claim of confidentiality over the material circulated as part of its brief, and to restrain the publication by the Sunday Business Post. He demonstrated by reference to the judgments of this Court in O’Callaghan v Judge Alan Mahon and others, (Supreme Court Unreported 9th March 2005 [2005] IESC 9) (conveniently referred to as JR324 in the submissions in this case), that the Tribunal had failed to maintain a claim of confidentiality in the circumstances of that case.
“In the present case I am of opinion that the claim to confidentiality goes even further than that which was unsuccessfully asserted by the Tribunal in O’Callaghan’s case. Having received statements on a confidential basis the Tribunal then circulates those statements and other material to the relevant parties. All of those documents whether obtained confidentially or not (and some of which are public documents) are sought to be rendered confidential by a policy decision of the Tribunal. Regardless of nature or source every document in a brief is said to be confidential and this court is asked to intervene so as to enjoin publication of all and any of that material by the defendant. I can find no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in my view should this court enforce it.”
30. Kelly J also reviewed the history of the law in respect of the equitable doctrine of confidence, with citations from English and Irish cases. He observed that the reliefs sought by the Tribunal covered all material in a brief, whether or not it was truly of confidential character. The only material capable of protection under the doctrine was that which had the necessary quality of confidence about it. He concluded:
“The reliefs which I am asked to grant seek to cover all of the material in a brief which the Tribunal has directed should remain confidential. Some of that material was obtained confidentially, some not. Some are public documents, some not. The mere fact that the Tribunal has directed that information or documents should remain confidential does not, in my view, make such documents confidential.
The only material which could be capable of protection is that which has the necessary quality of confidence about it. Material which is public property and public knowledge cannot have that quality. No order of the Tribunal can make it so. Some of the material in the brief might well be capable of protection but the injunctive reliefs sought make no such distinction or give any clue in that regard.”
31. Finally, he considered the circumstances in which a court might restrict the exercise of the right of freedom of expression. He quoted the analysis by Lord Hope of Craighead in his speech R. v Shayler [2003] 1 AC 247 at 280 of Article 10(2) of the European Convention on Human Rights and Fundamental Freedoms. That was to the effect that any such restriction must satisfy certain basic requirements. In the view of Kelly J, the restriction sought by the Tribunal did not satisfy these requirements. In particular, he did not consider that its imposition would be proportionate. Finally, he declined the invitation of the Tribunal to fashion a more narrow remedy than that sought.
32. I find myself fully in agreement with the approach adopted by Kelly J. In particular, he was right to take as his starting point the proposition that the matter as involving a request to restrict freedom of expression. I will turn then to discuss these issues.
The Appeal
33. The Tribunal’s notice of appeal contains fourteen grounds. Seven grounds take issue with that part of the High Court judgment which held that the order sought was overbroad and that there was insufficient information to enable the court to frame an appropriate order so as to protect only “truly confidential material.”
34. Regarding the substance of the Tribunal’s case, one ground concerned the failure of the High Court:
“to find that an obligation of confidentiality prevented the Defendants from publishing confidential documents and information having as its source the disclosure of such material by the Tribunal in the interest of permitting affected individuals to vindicate their constitutional rights.”
35. A number of other grounds complain of: the failure of the High Court to take sufficient account of the right of privacy under the Constitution and under Article 8 of the Convention; to take sufficient account of the citizen’s right to protection of his or her good name; failing to find that section 4 of the Official Secrets Act, 1963 imported a confidence into material disclosed by the Tribunal. There is specific complaint that the learned High Court judge failed “to have any or any adequate regard to the qualifications and the right to freedom of expression laid out in Article 10.2 of the European Convention on Human Rights.” Finally, it is said that the learned judge failed to hold that, in the event of any conflict between the Convention and the Constitution, the Constitution must prevail.
36. I do not propose to consider the issue of the Official Secrets Act. As was pointed our when the matter was raised at the hearing, that Act provides only for criminal sanctions. I do not see any basis for the allegation that it imports a right for the Tribunal to impose a requirement of confidentiality.
37. The Tribunal’s case is, therefore, expressly based on the claimed confidentiality of documents circulated by the Tribunal “in the interest of permitting affected individuals to vindicate their constitutional rights.” Mr Paul O’Higgins, Senior Counsel, for the Tribunal, argued that what was involved was a species of public-interest confidentiality. The public interest consisted in vindicating the good name of individuals as part of the Tribunal process. The Tribunal should be in a position to assure those who engage with it in its work that the information they provide will be used only in the interests of its inquiries and circulated in such a way that their confidence is respected.
38. Mr O’Higgins accepted the prima facie status of freedom of speech and argued that the issue was where the balance was to be struck.
39. The Tribunal does not dispute that the order it seeks would impinge upon the freedom of expression of the defendants and of others affected by the order. Nor does it dispute that it must rely on one of the permitted qualifications of that right.
Freedom of Expression
40. The Tribunal seeks, in the form of an injunction, a general order restraining future publication by the media. That form of order is called prior restraint. That is axiomatic and must be recognised before proceeding further in the discussion.
41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it.
42. It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Griffin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuableworks. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television PLC [1994] Fam. 192; [1994] 3 WLR 20:
“Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”
44. For the purposes of the present appeal, it is the last sentence of that passage which is important. The Tribunal needs to point to an exception clearly defined by law.
45. To be fair to the Tribunal, it has never contested or sought to diminish the importance of the freedom of the press to report and comment on its proceedings. For example, Ms Griffin has exhibited in her grounding affidavit the decision of the then Sole Member of the Tribunal dated 18th December 1998 which contains the following admirable statement:
“The Tribunal readily accepts both the importance and the role of the media in educating public opinion. This role is specifically acknowledged in the language of Article 40.6.1.i of the Constitution. The media enjoys a continuing right to freedom of expression that to be any way meaningful must include a right to report, comment and criticize. This Tribunal in common with any other public entity in this State can legitimately be the subject of adverse media comment. The Tribunal does not make any case that it is immune from the ordinary course of media reporting, comment and criticism.”
46. The Tribunal does not, on this appeal, contest these propositions. It expressly accepts that the right of freedom of expression is constitutionally guaranteed and, furthermore, that the law in this area must now be considered in the light of the European Convention of Human Rights Act, 2003. It submits, however, that the qualifications on the right to freedom of expression are as important as the right itself.
47. It is, therefore, necessary to consider the extent and nature of the right at issue before addressing the question of the restrictions which may be justified.
48. Article 40.6.1(i) of the Constitution guarantees the: “right of citizens to expressly freely their convictions and opinions……” The present case concerns the communication of information rather than opinions. The constitutional origin of the right to communicate information has been considered in two cases:
49. In Attorney General v. Paperlink Limited [1984] ILRM 373 at p. 381, Costello J situated it in Article 40.3.1°. He reasoned as follows:
“[T]he act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1°(i). But the activity which the defendants say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen’s right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°.”
50. In Murphy v. I.R.T.C. [1999] 1 IR 12, Barrington J, delivering the judgment of the Court, appears to have modified this, saying, at page 24 of the judgment:
“It appears to the Court that the right to communicate must be one of the most basic rights of man. Next to the right to nurture it is hard to imagine any right more important to man’s survival. But in this context one is speaking of a right to convey one’s needs and emotions by words or gestures as well as by rational discourse.
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland [1998] 1 IR 359, the rights of the citizens “to express freely their convictions and opinions” guaranteed by Article 40.6.1° is a right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°, so be it. The overlap may result from the different philosophical systems from which the two rights derive.”
51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.
52. The real issue is the extent to which and the grounds upon which restrictions on that right may be justified. In the constitutional context, Barrington J, at a later point in the judgment of the Court quoted above, added that “both the right of freedom of expression and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of the common good.” (page 25). The Court proceeded to judge the case before it (concerning a statutory prohibition on broadcasting of advertisements “directed towards any religious or political end…”).
53. Our courts, therefore, recognise that the right of freedom of expression is not absolute. It may be necessary to reconcile it, in the event of conflict, with other constitutional rights. It may even, as in the case of Murphy v. I.R.T.C., be restricted or controlled by laws passed for the advancement of other legitimate social purposes. In such cases, the courts have found it useful to have resort to the principle of proportionality. The judgment of Barrington J identified the issue at page 26 as follows:
“The real question is whether the limitation imposed upon the various constitutional rights is proportionate to the purpose which the Oireachtas wished to achieve.”
54. As I hope to explain, this approach is, and has been recognised by this Court to be, closely comparable to that adopted by the European Court of Human Rights when interpreting the Convention.
55. Article 10 of the Convention guarantees the exercise of freedom of expression in the following terms:
“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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
56. Just as the Court (Barrington J) in Murphy v I.R.T.C., posed for itself the question whether the statutory restriction on broadcasting religious broadcasts was “proportionate to the purpose which the Oireachtas wished to achieve,” a question may be formulated as a test for the present case in accordance with Article 10(2) of the Convention. In De Rossa v Independent Newspapers [1999] 4 IR 432, a libel case, Hamilton C.J., speaking for the majority of the Court recalled, at page 449 of the judgment, the dictum of Henchy J in Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 at p. 450 that “the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name.” Hamilton C.J. added that there did not “appear to be any conflict between Article 10 and the common law or the Constitution.” That is an issue to which I will return in more detail.
57. I believe, therefore, that the Convention analysis provides a particularly useful mechanism for examination of the justification for imposition of the restriction sought by the Tribunal in the present case. As Geoghegan J said in his concurring judgment in Murphy v I.R.T.C., “[a]lthough the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right.” This dictum was approved by Hamilton C.J, speaking for the majority of the Court, in his judgment in De Rossa v Independent Newspapers, cited above.(page 450).
58. The restriction sought is said to justified by the need of the Tribunal to protect the confidentiality of information communicated to it while it is carrying out its functions in accordance with the Tribunals of Inquiry Acts and the Oireachtas resolutions which established it.
59. Section 2 of the European Convention on Human Rights Act 2003 now requires the Court in interpreting “any statutory provision or rule of law, ……in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State’s obligations under the Convention provisions.” That provision applies to the provisions of the Tribunals of Inquiry Acts and to the general or common law regarding the protection of confidential information.
60. A restriction on freedom of expression, if it is to be permitted pursuant to Article 10(2) of the Convention, must, as that provision requires, firstly, be prescribed by law and, secondly, be “necessary in a democratic society…” It must, as the Court of Human Rights has said serve “a pressing social need.” It must also, of course, serve one of the listed interests. One of these is: “preventing the disclosure of information received in confidence.” Kelly J quoted the following passage from the speech of Lord Hope of Craighead in R. v. Shayler [2003] 1 A C 247 at page 280:
“The wording of Article 10(2) …… indicates that any such restriction, if it is to be compatible with the Convention right, must satisfy two basic requirements. First, the restriction must be, ‘prescribed by law’. So it must satisfy the principle of legality. The second is that it must be such as is ‘necessary’ in the interests [in that case] of national security. This raises the question of proportionality. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of this case. As any restriction of the right to freedom of expression must be subjected to very close scrutiny, it is important to identify the requirements of that jurisprudence before undertaking that exercise.
The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it is being resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v. The United Kingdom, 2 EHRR 245, para.49 and also from Winterwerp v. The Netherlands [1979] 2 EHRR 387, 402 – 403, para.39 and Engel v. The Netherlands (1) 1 E.H.R.R. 647, 669, paras.58 to 59, which were concerned with the principle of legality in the context of Article 5(1); see also A. v. The Scottish Ministers [2001] SLT 1331, 1336 – 1337.”
61. It is important to note the first of these requirements, that of legality. The restriction proposed must be based on a provision of the law of the state. Hoffmann L.J. said as much in the passage already cited. It is not necessary that the exception invoked be prescribed by statute. The law of defamation indubitably restricts freedom of expression, but is almost entirely a creature of the common law. But it must be based on known and accessible legal provisions. It must, as Lord Hope says be: “sufficiently precise to enable [an affected individual] to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.”
62. The principle of proportionality is not expressly mentioned in the Article, but has been developed in the case-law of the Court of Human Rights. It derives from the requirement that the restriction be “necessary in a democratic society.” The Court of Human Rights has consistently held that to satisfy this requirement the restriction sought must serve “a pressing social need.” (see Observer and Guardian v the United Kingdom judgment of 26 November 1991, Series A no. 216 p.30). A further crucially important aspect of that requirement is that the restriction should not be any broader than strictly necessary to serve the interest invoked to justify it. Lord Hope analysed proportionality in a further passage, also quoted by Kelly J, at page 281of the same speech:
“The first is whether the objective which is sought to be achieved – the pressing social need – is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally as is reasonably possible. As these propositions indicate, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.”
63. Our own courts have consistently approved and applied, for instance in Murphy v I.R.T.C., the following dictum of Costello J (as he then was) regarding the principle of proportionality in Heaney v. Ireland [1994] 3 I.R. 593 at 607:
“In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights…… and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant over-riding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-
1. (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
2. (b) impair the right as little as possible, and
3. (c) be such that their effects on rights are proportional to the objective …”
64. The Tribunal, as I have explained, founds its application for the remedies sought exclusively on the law of confidence. Necessarily, it is driven to show that its reliance on the confidentiality of the documents it has circulated justifies the restriction of the defendant’s right of freedom of expression.
65. Finally, under this heading, it is is important to reiterate that what is sought by the Tribunal amounts to a form of prior restraint. The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the most careful scrutiny. In Observer and Guardian v United Kingdom, (cited above), the Court held:
“…Article 10 of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such………On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny by the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.”
66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the factual justification for the restriction.” (cited above). It must scrutinise the present application for an injunction seeking prior restraint on publication with particular care.
The Law of Confidence
67. The Tribunal accepts that there is no provision in the Tribunals of Inquiry Acts conferring the quality of confidentiality on the Tribunal or on any of its workings. In its written submissions to this Court, it makes reference to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, which provides:
“A tribunal may make such orders as it considers necessary for the purposes of its functions, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that Court in respect of the making of orders.”
68. It does not suggest, however, that its claim is based on that provision or that any order was made by the Tribunal pursuant to that power. Indeed, the defendant claims in its written submissions that the Tribunal has made no attempt to identify the juridical nature of its claim to confidentiality.
69. In essence, as already explained, the Tribunal bases its claim on the express written notice it gives to persons to whom it communicates its briefs that their circulation is on a strictly confidential basis. Clearly, a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in JR324. Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation. Problems arise only when information has been released or, as often happens, “leaked.”
70. The law with regard to confidential information is of comparatively modern origin. It was above all developed to regulate the behaviour of private parties and was based on the doctrine of trust. It is independent of contract. A recipient of a confidence must not breach it by communicating the confidential information to third parties. It is, of course, capable of application both to purely personal and to non-commercial information. The case of Prince Albert v Strange (1849) 1 Mac G 25 concerned drawings and etchings made by Queen Victoria and Prince Albert of subjects of private and domestic interest to themselves. Certain plates had been confided to a printer for the purpose of printing impressions for private royal use. They had found their way by surreptitious means into the hands of persons wishing to publish a catalogue of them. An injunction was granted based on breach of confidence and trust. The case of Duchess of Argyll v Duke of Argyll [1967] Ch. 302 concerned the publication of marital secrets.
71. The law of confidence has, however, developed more generally in a commercial context. Dismissed or defecting employees have not infrequently purloined their former master’s technical or commercial information. While employees can be restrained in contract without resort to the equitable doctrine, the latter becomes relevant when the information is conveyed to third parties who are on notice of the confidential character of the information. A more specific type of application of the equitable principle has arisen where information has been conveyed during negotiations for the establishment of a joint commercial venture. Many of the cases have arisen from cases of failed negotiations. The recipient of the information is deemed to have received the confidential information on trust solely for the purposes of the intended joint venture. If the negotiations fail, that recipient will, if necessary, be restrained from using it or authorizing use of it without permission, for his own purposes. Kelly J cited a passage from the judgment of Megarry J (as he then was) in Coco v A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41 at 47. It neatly encapsulates the requirements for a successful action based on breach of confidence, at least in a commercial setting. He said:
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
72. Megarry J gave further thought to the test for establishing the confidential character of information:
“First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at pg.215, ‘something which is public property and public knowledge’, cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts.”
73. In the first case on this topic in this jurisdiction, House of Spring Gardens Ltd. and others v. SIZE=4 FACE=”Times New Roman”> Point Blank and others [1984] I.R. 611 Costello J reviewed, in great detail, the English decisions commencing with Prince Albert’s case. He was dealing with a case of the failed-joint-venture type. His analysis of the law was approved by this Court. He cited, in particular two passages from English decisions on the circumstances from which an obligation of confidence may be deduced. In Terrapin Ltd. v. Builders’ Supply Co. (Hayes) Ltd [1960] R.P.C. 128, Roxburgh stated (as reported on page 1317 of the report of Cranleigh Precision Engineering Ltd. v. Bryant [1965] 1 W.L.R. 1317.):
“As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by members of the public.”
Costello J cited with approval a very similar dictum of Lord Denning M.R. in Seager v Copydex Ltd.:
“The law on this subject does not depend on any implied contract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole information is private. The difficulty arises when the information is in part public and in part private.”
74. From all of these cases, the contours of the equitable doctrine of confidence can be described sufficiently for the purposes of this appeal, as follows:
1. The information must in fact be confidential or secret: it must, to quote Lord Greene, ‘have the necessary quality of confidence about it’;
2. It must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. It must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.
75. A fuller discussion and treatment, taking account of issues not relevant to the present case, may be found in R.G. Toulson and C.M. Phipps, Confidentiality (Thomson Sweet & Maxwell London 2006).
76. An important point is, however, made by the defendant, namely that the confidence is vested in those who have created the information or, as may in this case, have provided it to the Tribunal. The defendant relies on a decision of the Court of Appeal in England in Fraser v Evans [1969] 1 Q.B. 349. In that case, a public relations consultant to the Greek Government under a contract expressly imposing on him the duty never to reveal any information about his work made a written report to that government. A version of the report in an English translation was surreptitiously obtained, and came into the hands of journalists from the “Sunday Times,” who proposed to publish an article based on the report. The consultant obtained an interim and an interlocutory injunction. The latter was set aside on appeal. Lord Denning M.R. referred to the cases on the issue of breach of confidence. At page 362, he proceeded as follows:
“Those cases show that the court will in a proper case restrain the publication of confidential information. The jurisdiction is based not so much on property or on contract as on the duty to be of good faith. No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so. Even if he comes by it innocently, nevertheless once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence. But the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed. It is at this point that I think Mr. Fraser’s claim breaks down. There is no doubt that Mr. Fraser himself was under an obligation of confidence to the Greek Government. The contract says so in terms. But there is nothing in the contract which expressly puts the Greek Government under any obligation of confidence……… It follows that they alone have any standing to complain if anyone obtains the information surreptitiously or proposes to publish it. And they did not complain of the publication now proposed…… On this short point it seems to me that Mr. Fraser himself cannot proceed on breach of confidence so as in his own behalf to prevent “The Sunday Times” publishing the article.” (emphasis added)
77. That decision was referred to in argument, though not in judgment in Broadmoor Special Hospital Authority v Robinson [2000] QB 775, where the plaintiff authority sought an injunction restraining publication by a mental patient of a book giving information about other patients. The injunction was refused. The Court of Appeal stated that that the authority could not bring proceedings to protect other patients’ rights to privacy or confidence or to prevent distress to the victim’s family unless the conduct complained of interfered with the performance of the authority’s own duties. These cases are also discussed in R.G. Toulson and C.M. Phipps on Confidentiality, cited above.
78. This case is not, of course, of the same character as any of those discussed above. It does not concern relations between private parties. In England, the principles of the law of confidence were extended to the workings of government in Attorney General v Jonathan Cape Ltd [1976] 1 Q.B., which concerned an application to prevent the publication of Richard Crossman’s Diaries of a Cabinet Minister. The injunction was refused, due to lapse of time, but the principle was established. Lord Widgery C.J. said at page 769:
“……these defendants argue that an extension of the principle of the Argyll [cited above] case to the present dispute involves another large and unjustified leap forward, because in the present case the Attorney-General is seeking to apply the principle to public secrets made confidential in the interests of good government. I cannot see why the courts should be powerless to restrain the publication of public secrets, while enjoying the Argyll powers in regard to domestic secrets. Indeed, as already pointed out, the court must have power to deal with publication which threatens national security, and the difference between such a case and the present case is one of degree rather than kind. I conclude, therefore, that when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the court, and his obligation is not merely to observe a gentleman’s agreement to refrain from publication.”
79. The “Spycatcher” case was, of course, the setting for the most extensive and strenuous reliance on these principles. The attempts of the government of the United Kingdom to restrain publication of the memoirs of Mr Peter Wright extended almost worldwide. The key principle established in all that litigation was that the government was not in a position to complain of breach of its secrets and publication of confidential information on the same basis as private individuals.
80. The House of Lords had occasion to consider all aspects of the application of the doctrine to the publication of Mr Wright’s memoirs in Attorney General v Guardian Newspapers [1990] 1 AC 109. I propose to cite the dicta regarding the need to show detriment to the public interest. Lord Keith of Kinkel said at page 256:
“The position of the Crown, as representing the continuing government of the country may, however, be regarded as being special. In some instances disclosure of confidential information entrusted to a servant of the Crown may result in a financial loss to the public. In other instances such disclosure may tend to harm the public interest by impeding the efficient attainment of proper governmental ends, and the revelation of defence or intelligence secrets certainly falls into that category. The Crown, however, as representing the nation as a whole, has no private life or personal feelings capable of being hurt by the disclosure of confidential information. In so far as the Crown acts to prevent such disclosure or to seek redress for it on confidentiality grounds, it must necessarily, in my opinion, be in a position to show that the disclosure is likely to damage or has damaged the public interest.”
81. To similar effect, Lord Griffiths at page 270 held:
“But whatever may be the position between private litigants, we have in this litigation to consider the position when it is the Government that seeks the remedy. In my view, for reasons so cogently stated by Mason J. in Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39, which I will not repeat because they are fully cited in the speech of Lord Keith of Kinkel, a government that wishes to enforce silence through an action for breach of confidence must establish that it is in the public interest to do so. This is but another way of saying that the Government must establish, as an essential element of the right to the remedy, that the public interest will suffer detriment if an injunction is not granted.”
82. Lord Goff of Chieveley expressed the matter in somewhat different terms at page 283:
“In cases concerned with Government secrets,……… it is incumbent upon the Crown, in order to restrain disclosure of Government secrets, not only to show that the information is confidential, but also to show that it is in the public interest that it should not be published……… The reason for this additional requirement in cases concerned with Government secrets appears to be that, although in the case of private citizens there is a public interest that confidential information should as such be protected, in the case of Government secrets the mere fact of confidentiality does not alone support such a conclusion, because in a free society there is a continuing public interest that the workings of government should be open to scrutiny and criticism. From this it follows that, in such cases, there must be demonstrated some other public interest which requires that publication should be restrained.”
83. In reaching these conclusions, several of the Law Lords referred with approval to the following dictum, quoted in extenso in the speech of Lord Keith, of Mason J in his judgment in the High Court of Australia in Commonwealth of Australia v. John Fairfax & Sons Ltd. (1980) 147 C.L.R. 39:
“The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”
84. It is of interest to note that the identical passage from the judgment of Mason J was cited with approval by Carroll J in her judgment in Attorney General for England and Wales v Brandon Book Publishers Ltd. [1986] I.R. 597 at 601. That passage was, no doubt, obiter to the decision of the learned judge. She held, quite correctly, that the plaintiff was not in a position to rely upon the public interest of a foreign government before an Irish court. On the other hand, I believe that the dictum of Mason J is deserving of the respect accorded to it by Carroll J, quite independently of the views of the House of Lords. I also believe that, since the Tribunal clearly does not fit within the scope of the traditional type of case concerning breach of confidence between private individuals, it must prove detriment to the public interest if it is to obtain the injunction sought.
Application of Legal Principles to the Facts of this Case
85. As I have already stated, this case concerns an attempt to impose a restriction on the exercise of the right guaranteed by both the Constitution and the Convention to the free expression of convictions and opinions including the free communication of information. Hence, the Tribunal must justify the order it seeks on the basis of an exception recognised by law. That is necessary in the purely constitutional context. It is also necessary for the Tribunal to show that it can justify the order it seeks by reference to one of the interests listed in Article 10(2) of the Convention.
86. In particular, since it seeks an order by way of prior restraint on publication, its application must be subjected to particularly strict scrutiny.
Legal Justification; Prescribed by Law
87. I do not believe that the Tribunal has established any legal justification for its claim of confidentiality. It was expressly accepted at the hearing of the appeal that there is no provision of the Tribunals of Inquiries Acts imposing confidentiality on the documentation circulated by the Tribunal in the form of “briefs.” I have already mentioned that the Tribunal, while referring to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 does not claim that an order has been made pursuant to that provision or even that the section authorises such an order. It is not unknown for the Oireachtas to enact specific rules ordaining the confidentiality of categories of documents or information under pain of criminal penalty: see for example section 37 of the Commissions of Investigation Act, 2004. Similarly, the media are prohibited on pain of prosecution from publishing the proceedings of the family courts.
88. The Tribunal relies, for this purpose on the statement accompanying the briefs, which says:
“The enclosed documents remain the property of the Tribunal and the information contained therein is confidential to the Tribunal and may not be disclosed to any person other than your legal advisor, who is likewise restrained from disclosing the contents thereof. You must retain the original documents in your possession. If it is your intention to copy any of the documents enclosed, you must seek the consent of the Tribunal prior to doing so.”
89. Unlike the cases concerning communication of confidences, there is no question of trust here. That type of trust or confidence arises from mutual arrangements of some sort, as in the joint venture cases. A person becomes the repository of confidences on an implied basis of trust, firstly in the colloquial sense that the communicator trusts that person and, secondly, in the equitable sense of trust. No such relationship is alleged here. The terms of confidentiality are imposed unilaterally by the Tribunal. They are extremely restrictive. They extend to a person’s spouse or other close intimates or associates whether personal or business. I cannot accept, as appeared to be suggested at the hearing that these are trivial or unimportant matters, which should not be taken seriously, because the Tribunal would never enforce the terms so rigorously. I find myself in agreement with Kelly J, who said that he could “find no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in my view should this court enforce it.
90. Furthermore, I do not accept that the Tribunal has power to enforce the confidentiality of documents or information which are, or as may well be the case, may be, confidential to persons who have assisted the Tribunal by making statements or giving information or documents. I would not wish to pronounce definitively on whether the decision of the Court of Appeal in England in Fraser v Evans, cited above, should be followed, without qualification, in this jurisdiction. I would merely make the following observations. The Tribunal, especially in its notice of appeal, claims the right to seek the orders by way of injunction in the interests of protection of the privacy or good name of persons who may be affected by publication. It would represent a substantial departure from the existing law if courts were to make general orders of prior restraint in protection of the good name of individuals, even in applications at the suit of those individuals themselves. In the exceptional cases where that is done, the person moving the court must place before it cogent material to demonstrate that his or her name will be irreparably and seriously damage if an impending publication takes place. The orders sought at present would be made on the presumptive and entirely speculative basis that publication of material circulated by the Tribunal would damage the good name of unnamed and unspecified individuals without any showing whatever on the question of damage. Furthermore, it would be done at the behest, not of the individuals, who would not be required to play any part, but of the Tribunal.
91. I do not, in the preceding passage, intend to disparage the possibility that an individual, aware of impending media publication of information communicated by him or her to the Tribunal, could succeed in obtaining an injunction. The law of defamation has established principles in this area. An individual complaint grounded on the right to privacy might succeed by virtue of the mere fact that the information (for example, an individual’s personal financial information) was private and personal. Unlike other jurisdictions, we have not yet had cases of this sort. There is room for development of the law.
92. At the beginning of the paragraph before the preceding one, I mentioned documents or information which are confidential to persons who have assisted the Tribunal by making statements or giving information or documents. Of course, the orders sought are so broad as to affect potentially information which is not confidential at all and in respect of which the related individuals have sought no undertaking as to its being kept confidential. As was stated at the hearing of the appeal, briefs are circulated to proposed witnesses who are not themselves impugned by any allegation. Most particularly, I regard as strange, not to say bizarre, the notion that the press may be restrained from publishing the fact that the Tribunal has circulated a document, even an entirely innocuous one, which is already in the public domain. If it is already a public document, what is confidential about the fact of its having been circulated by the Tribunal?
93. Finally, the question of whether the doctrine of confidence extends to the information of the government or of public authorities has not yet been the subject of judicial determination in this jurisdiction. For what it is worth, I do not see any reason not to follow the line of case-law which has been adopted in England. This point is more relevant to the question of whether the ground for the restriction is prescribed by law for the purposes of Article 10(2) of the Convention, to which I now turn.
94. All of the reasons I have given amount to compelling reasons demonstrating that the restriction relied upon is not prescribed by law. Clearly, steps taken for “preventing the disclosure of information received in confidence” is one of the exceptions recognised by Article 10(2). However, the Tribunal has, for reasons already mentioned, not demonstrated any legal power to prevent those to whom it communicates its briefs from communicating their contents. In this context, I would add that, in the present state of Irish law, and acknowledging that it may develop, it is not established that governmental or other public or statutory bodies have the right to apply for injunctions preventing the disclosure of confidential information. The Tribunal’s claim depends crucially on whether it has power to impose a requirement of confidentiality on all recipients of its briefs. Since there is no express power, it asks the Court to rule that it exists. In my opinion, the Court does not itself have such power. It cannot confer a power which the law has not conferred.
95. That is sufficient to dispose of the appeal. Nonetheless, I will consider the question of proportionality.
Proportionality
96. I have quoted in full at the beginning of this judgment the form of order sought in these proceedings. That is the form order obtained by the Tribunal on 17th December 2004. Kelly J, in the High Court considered that this form of order could not be said to impair the rights of the defendant as little as possible. He thought it was “entirely disproportionate to the aim being pursued and in excess of any legitimate need.” He added:
“On the contrary, the order sought would prevent the defendants from publishing material that is already in the public domain, that was not given to the Tribunal in confidence, that did not come into existence for the Tribunal’s purposes and whose owners may have no objection to the defendant publishing it. An injunction of the type sought goes much further than one which could ever be required to address the Tribunal’s alleged difficulties. Such an order would fetter and impede the defendant to a much greater extent than could ever be regarded as necessary.”
96. In response to an invitation from counsel for the Tribunal that he frame a form of order which was less wide, he stated that it was not the function of the court to do this. He also stated:
“I would have to have sufficient information to enable me to draft an order that is “sufficiently precise to enable (the defendants) to understand its scope and foresee the consequences of (their) actions so that (they) can regulate (their) conduct without breaking the law” (per Lord Hope). The order would also have to be drafted so as to protect only that deserving of protection (truly confidential material) and impede the defendants in their entitlements to the minimal extent reasonably possible. It would be difficult to draft such an order.”
97. Counsel for the Tribunal, at the hearing of the appeal, proposed the following modified form of order:
“An injunction restraining the Defendant (or any person having knowledge of the order herein) from publishing, using or exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the Plaintiff of documents for the purpose of the Tribunal’s public hearings:
(a) before such information and/or the contents of such document has been disclosed at a public hearing of the Plaintiff; or
(b) until the Plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the Defendant (or any person having knowledge of the order herein) is restrained from publicizing the fact that they are part of the documents so circulated.
98. It must be noted, at the outset, that this order does not relate in any way to the documents already published in 2004 or indeed to any specified document. It relates generally to all documentation which will be circulated by the Tribunal in the future. It applies and is intended to apply to everybody and, in particular, to the entire of the media, not merely to the defendant and its newspapers but to all other newspapers and other news media. It neither specifies nor identifies any particular documents. The expression, “any information or document or any part thereof, forming part of or arising from the documentation circulated,” is both vague and ambiguous. The original formulation depended only on whether the Tribunal had purported to impose the requirement of confidentiality; to that extent, it had the merit of clarity. The new formulation introduces the notion that the documents shall have been: “circulated by the Plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal.” The Court has been informed that “briefs” are circulated to persons who are not at all impugned. The amended formulation would appear not to affect such recipients. If so, the order would be pointless. Furthermore, it applies to “information……arising from the documentation circulated,” which could mean anything. Who is to decide what documents are “in the public domain”?
99. The defendant has referred to the dictum of Lord Nicholls in Attorney-General v Punch Ltd [2003] 1 AC 1046 at 1055:
“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute. An order expressed to restrain publication of “confidential information” or “information whose disclosure risks damaging national security” would be undesirable for this reason.”
100. I do not regard either the original or the amended formulation of the proposed order as satisfactory. I do not believe that any satisfactory formulation is capable of being devised.
Conclusion
101. The Tribunal seeks an order which will restrict freedom of expression. It claims that the press should be restrained from publishing information which it has designated as confidential. It has not been able to identify any legal power which it possesses to designate information released by it in that way. It seeks an order in very wide terms in respect of unspecified information, which would affect the entire media.
102. In my view, the learned trial judge correctly dismissed the Tribunal’s application. I would dismiss the appeal.
JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of March 2007
This is an appeal by the above-named appellants (hereinafter referred to as “the Tribunal”) against an order of the High Court (Kelly J.) refusing certain alternative injunctions against the above-named respondent (hereinafter referred to as “Post Publications”) prohibiting the publication of what the Tribunal considers to be certain confidential documentation and information emanating from it.
The proceedings had been commenced with a plenary summons and contemporaneously an application was made to the High Court for interim injunctions in the form of the alternative injunctions to which I have referred. In fact Finnegan P. who heard the application granted both interim injunctions. The consequential motion seeking interlocutory injunctions in the same form was ultimately adjourned from time to time with the interim injunctions remaining in place. In the meantime, various affidavits were exchanged and ultimately by agreement the hearing of the interlocutory motion was treated as the trial of the action. Kelly J., therefore, determined the issues on foot of affidavits and exhibits and without oral evidence. I will return later to the reasons why the reliefs were refused.
So that there can be a proper understanding of the nature of the issues on this appeal and how they arise, I think it essential that I review in some detail the variousaffidavits filed.
The first and most important is the affidavit of Marcelle Gribbin, solicitor attached to the Tribunal grounding the original application for the interim injunctions and sworn on the 17th December, 2004. In the introductory part, she explains the general nature of the Tribunal which was established pursuant to respective resolutions passed by Dáil Éireann and Seanad Éireann in 1997 and which had the powers conferred on it by the Tribunals of Inquiry (Evidence) Act, 1921, as amended. The Tribunal was set up to investigate alleged corruption in the planning process. She goes on to give details of the ownership of the Sunday Business Post which is owned by Post Publications and which in turn is a subsidiary of Thomas Crosbie (Holdings) Limited the publisher of the Examiner Newspaper in Cork.
Ms. Gribbin goes on to explain that at a public hearing of the Tribunal on the 14th January, 1998 a protocol in the following terms was announced by the then Sole Member.
“I fully appreciate concerns which persons wishing to assist the Tribunal may have in relation to the issues of personal and commercial confidentiality. In order to protect these legitimate concerns I propose to adopt the following protocol in regard to documents:-
(i) All original documents will be returned to their owners after the Tribunal has concluded its work.
(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after the conclusion of the inquiry.
(iii) All documents will be stored in a secure location.
(iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties who will have access to such documents will be the Chairman and the legal team to the Tribunal.
(v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the inquiry, or other information, which is relevant, will have the irrelevant information blanked out.
(vi) Counsel for the Tribunal will be willing at all times to discuss any concerns any person may have concerning confidential, personal or commercially sensitive information.”
In paragraph 7 of the affidavit the deponent explains that since it was established the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information which according to her has significantly delayed the Tribunal’s work.
I need to pause here because one of the problems in this case and indeed it is a problem to which the learned High Court judge attached considerable significance is what exactly the Tribunal rightly or wrongly regards as “confidential information”. As I understand the case being made, it is not confined to documents furnished by persons at its investigative stage with an express stipulation as to confidentiality in the event of their not being considered relevant to be produced at the oral hearing. In order to explain what the Tribunal means by the expression for the purposes of this appeal it is necessary to explain the context in which it arises. The Tribunal at its investigative stage gathers in all kinds of documentation and information which it may or may not find necessary to use for the purposes of the oral hearing and, therefore, for the purposes of the findings of the Tribunal. Ideally from the point of view of persons who give the Tribunal such documentation or information it would not be furnished to any outsiders by the Tribunal unless and until it was produced at the oral hearing. Having regard however to re Haughey [1971] IR 217 the Tribunal is under a constitutional obligation to give reasonable advance notice to a third party whose reputation may be put in question by evidence given by a witness at the Tribunal. Accordingly, the Tribunal has devised a system of sending out a brief to each person who might potentially be damaged by evidence at a forthcoming public hearing. The brief contains documentation including for instance another witness’s statement which would, effectively, put that person under notice as to what is going to be said in relation to him or her at the Tribunal. When carrying out this practice the Tribunal makes it clear that the “brief” is confidential. The learned trial judge correctly points out that the “brief” may contain documents with information which is in the public domain at any rate as for instance a Companies Act search. Therefore, he concludes that the injunctions sought (the terms of which I will be setting out later) are much too wide and essentially that is the basis on which the reliefs were refused. While I do not know exactly what was said in the High Court, I am satisfied from the submissions made in this court and also as a matter of inference from the affidavits which I will be fully reviewing that although, undoubtedly, the Tribunal is not confining its confidentiality policy to documents in respect of which it has already promised confidentiality to some person it nevertheless is not intending to extend it to documents that are in the public domain or contain information in the public domain. What it does require however is that it not be disclosed that such public document or document containing such public information is in fact included in the “brief” because of course that is quite a different matter. It may produce context which implicates adversely some person and which if published in advance of an oral hearing could be very damaging. After that diversion, I now intend to return to Ms. Gribbin’s affidavit.
Paragraph 7 reads as follows:
“Since it was established, the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information, which has significantly delayed the Tribunal’s work. The Tribunal believes that such unauthorised disclosures are deliberate, are made by or on behalf of persons who have been or who are likely to be called to give evidence to the Tribunal and are intended to undermine and delay the Tribunal in its work. As a result of one such disclosure the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, on the 10th December, 1998, expressing his concerns ‘following the continuing publication in the print media of confidential material provided to the Tribunal and circularised by the Tribunal on a strictly confidential basis. It is apparent that past publication of material has taken place, notwithstanding that the publishers were or ought to have been aware of the strictly confidential nature of the documentation which has been published without the authority of the Tribunal.’ The Sole Member also noted in that letter that he had received a number of complaints from individuals whose rights they claimed had been infringed by the unauthorised publication of the Tribunal’s documentation and information. Some of the complainants had indicated that their desire to assist the Tribunal was limited by their fear that confidential information disclosed by them would end up in the newspapers. A letter in similar terms to that sent to the Sunday Business Post was written to the editor of the Examiner.”
Both letters as referred to in that paragraph were exhibited. In each letter, the respective editors were required not later than twelve noon on Friday, 11th December, 1998 to undertake in writing to the Tribunal that they would not publish in any form any confidential material which had been provided to the Tribunal or which had been circularised to others in confidence by the Tribunal. Ms. Gribbin then refers to a series of leaks to different organs of the media and to consequent distressed complaints from persons the subject matter of the stories connected with the leaks. In general, despite the very extensive garda investigation at one stage at least four journalists interviewed declined to answer relevant questions or reveal their sources of information. The deponent then describes how in January, 2001, the Sunday Business Post and other newspapers again published confidential tribunal material. This gave rise to a public statement made by the then Sole Member. That particular statement mainly related to documents which had been furnished confidentially by the Tribunal to financial institutions seeking information but had come into the hands of media outlets. Only one of the newspapers gave an undertaking not to publish in future. The Sole Member in the public statement made it clear that he believed that such unauthorised publication of confidential material may hinder or obstruct the Tribunal in its work and may prove to be a disincentive to persons who had otherwise readily cooperated with the Tribunal’s investigation. It also went on to state that the unauthorised publication of the confidential information had “understandably, caused significant distress to persons named in the article”. The second last paragraph in the public statement reads as follows:
“I earnestly ask the media not to publish or disseminate information which is confidential to the Tribunal and I want to make it clear to all concerned that I will not hesitate to use such options as are available to me, whether by way of application to the High Court by way of complaint to the DPP or otherwise to restrain any improper disclosure of information confidential to the Tribunal.”
That public statement was delivered as far back as 24th January, 2001.
Three years before that on the 18th December 1998, the Sole Member had issued a statement to all the principal media outlets. That statement is exhibited in the affidavit. The following is a quotation from paragraph 5 of that document.
“The preparation of a report and the making of recommendations based on the facts established at such public hearing.
This Tribunal is currently carrying out a preliminary investigation in private in relation to certain aspects of its work. The Supreme Court in the recent Haughey case, at page 122 of the transcript, has made clear that if the inquiry worked during the preliminary investigation stage … were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby.”
After going on to explain the function of the Tribunal in the same paragraph there is then a heading “Confidential Information” and that paragraph reads as follows:
“It is essential to the proper functioning of this phase of the work of this inquiry that, where appropriate, the confidential nature of inquiries being made and the confidential nature of information and documentation coming into possession of the Tribunal be respected. This Tribunal, in common with past tribunals of inquiry, took the step of publishing at a public sitting a protocol detailing the manner in which the Tribunal would treat confidential information and documentation. The Tribunal considers all documentation and information concerning its inquiry work, whether emanating from or received by the Tribunal as confidential information. The Tribunal also considers that any such documentation or information is generally confidential in nature, as well as the fact of having been communicated in circumstances importing an obligation of confidence.”
In paragraph 12 of the affidavit the deponent refers in detail to a specific complaint by the Tribunal against the Sunday Business Post. The solicitor for the newspaper and the author of the article, Mr. Frank Connolly, were written to. Part of the letter read as follows:
“… your clients’ article appears to have been based on the document or documents compiled from a series of letters written to a financial institution by the Tribunal. These letters were written by the Tribunal as part of its preliminary investigations in private (which are not yet completed) and were expressed to be so in the body of the letter. Each of the letters was headed ‘strictly private and confidential – to be opened by addressee only’. The information contained in the letters remains confidential to the Tribunal whether contained in the letters themselves or in a document compiled from the letters. This would undoubtedly have been readily apparent to your client. Your clients are undoubtedly aware of the importance of the Tribunal’s preliminary investigations in private. Your clients’ publication constitutes a very serious infringement of the confidentiality of the Tribunal. It could seriously damage the work of the Tribunal. It could cause damage to the reputations of persons whose interest may be affected by the work of the Tribunal. The Sole Member would expect that persons who came into possession of confidential information of the Tribunal would seek to uphold the confidentiality thereof rather than to expand the breach of confidence. The Sole Member requires that in future your clients maintain the confidentiality of the Tribunal. Meanwhile, the Sole Member will take such steps as he considers appropriate to protect the work of the Tribunal.”
Ms. Gribbin goes on to refer to another incident of unauthorised publication by the Sunday Business Post. This was on the 17th October, 2004 when the paper published an article written by one Barry O’Kelly entitled “Jim Kennedy’s pipedream”. She describes how a further article appeared on that day entitled “Fifty Councillors named in new Tribunal list”. She then deposes to her belief that confidential tribunal documents form the basis of those articles. She explains how a number of documents in connection with a module known as the “Coolamber” module had been circulated to a limited number of parties on the 6th October, 2004. Some further documents in connection with the same module were circulated later in the same month. Public hearings in that module did not commence until the 7th December, 2004. The Tribunal’s letter accompanying the documentation included a specific direction of confidentiality. The document was not to be disclosed to any person other than the legal advisor who is to be likewise restrained from disclosing the contents. A further article headed “Lenihan, Flynn in new payments revelations” written by the same Barry O’Kelly was published in the Sunday Business Post on the 24th October, 2004. This article, according to the deponent, included extracts from a confidential statement furnished to the Tribunal by a Mr. Jude Campion. Accompanying that article was a photograph of an extract from the statement which clearly displayed the Tribunal’s date stamp and the words “confidential” printed thereon. Mr. O’Kelly was asked to furnish the source or sources of his information and materials be refused.
Ms. Gribbin then goes on to explain that as on previous occasions a number of complaints were received by the Tribunal about these disclosures. Two passages from one such complaint are set out in the affidavit and are worth quoting. The first read as follows:
“It is very clear that Mr. O’Kelly, the journalist, had access to considerable amount of information which, it would appear can only have emanated originally from the Tribunal.”
The letter continued:
“We appreciate that the leaking of information such as this is extremely difficult for any tribunal to control and we trust that appropriate measures will be taken to investigate its provenance and steps taken to reprimand the perpetrators.”
Yet another complaint was couched in these terms:
“It is a matter of serious concern to my client as it is to members of the Tribunal that confidential information should be made public in this most public of ways. We have had correspondence in relation to issues such as this before and the views expressed at that time apply equally to this situation.”
Nor was the Tribunal able to obtain the return of the copy of the Jude Campion statement that fell into the hands of the Sunday Business Post. In a letter form the paper’s solicitors, it was made clear that the source of the information would not be disclosed nor would any documentation or other material that came into possession of the paper. The Tribunal was informed indeed that even the return of documentation could identify the source and in those circumstances that they would undertake to destroy the documentation. The Tribunal sent an urgent fax directing that the documentation was not to be destroyed. No response was received from the paper or the solicitors. The Tribunal wrote again seeking the return of the copy of Mr. Campion’s statement and requiring an undertaking that no confidential tribunal documents or their contents would be published until after such document or its contents had been disclosed at a public sitting of the Tribunal. The Tribunal informed the solicitors that it was not at that time insisting that the source of the documentation be disclosed but reserved its right to do so if the document was not returned and the undertaking not given. That elicited a letter from the solicitors for the paper stating that the documentation concerned had been destroyed and making it clear that it was to protect the identity of the source that the document was destroyed. The Tribunal wrote an indignant letter in reply and also sought undertakings for the future which were refused. The solicitors made it clear that they were not involved in the destruction of the documents but were informed that it had happened. Mr. O’Kelly, the journalist, formally confirmed to the Tribunal that he had destroyed the documents. Mr. Anthony Dinan, on behalf of Post Publications Limited was asked to give an undertaking “that any documents or any contents thereof issued or circulated in confidence by the Tribunal will not henceforth be published by your clients or either of them unless such documents or its contents have been disclosed at a public sitting of the Tribunal”. Ms. Gribbin explained that Mr. Dinan refused to give such undertaking which refusal was confirmed in a formal letter to the Tribunal. After that Mr. O’Kelly when recalled to give evidence again refused to disclose his sources. An alternative undertaking to be given by Mr. Dinan was then suggested by the Tribunal, this was to take the form “that the Sunday Business Post will not publish information or reproduce documentation in relation to which it is aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at the public hearing or as otherwise directed.” That undertaking was also formally refused.
Essentially, these are the background circumstances in which the Tribunal in its original affidavit looked for injunctions. The two interim injunctions read as follows:
1. An injunction restraining the defendant, its servants or agents (and all other persons having knowledge of the granting of the order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal.
2. An injunction restraining the defendant, its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal.
(a) Before such information and/or the contents of such documents has been disclosed or read at a public hearing of the Tribunal or
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information.
As I will be explaining in more detail later on in this judgment, the learned High Court judge was, at all material times, concerned about the scope of each of these injunctions which in the end he held to be too wide having regard to the generally accepted principles of freedom of the press referred to both in the Constitution and the European Convention of Human Rights. The judge did indicate that he might re-list the matter before giving judgment with a view to receiving submissions as to the wording of a possible narrower injunction. In the event, he did not adopt this latter course but refused the relief mainly on the ground that what was sought was too wide. At the hearing of this appeal, counsel for the Tribunal, Mr. Paul O’Higgins, S.C. proposed to this court a third alternative form of injunction with the following wording:
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing:-
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
Such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the documents so circulated.”
It is sufficient at this stage to state the options being put forward to the court by the Tribunal. I will return to them later on in the judgment for the purpose of considering whether the appeal should be allowed or not and, if so, what form of injunction would be appropriate.
I think it helpful at this stage to return to the affidavits. In reply to the affidavit of Marcelle Gribbin which I have already summarised an affidavit on behalf of PostPublications was sworn by Anthony Dinan, mentioned above, on the 21st January, 2004. The substance of the affidavit effectively commences in paragraph 4. In that paragraph, Mr. Dinan refers to the procedures of the Tribunal in relation to sending out briefs to interested parties in advance of a public hearing and he asserts that on many occasions, newspapers and other media organisations have published such alleged confidential information and he exhibits some examples. The last sentence in the paragraph, however, summarises the position taken by Post Publications. It reads:
“I say that it is not accepted that these matters are confidential or that any particular claim of confidentiality may be made in that regard by the Tribunal.”
The next paragraph is essentially a complaint that the Sunday Business Post has been picked out for proceedings after six years when no such proceedings had been brought against any other publication. I will skip over the next parts of the affidavit which are submissions of law. The next set of paragraphs are also argumentative in that they are attempting to justify an alleged principle that a journalist cannot be expected to reveal his sources. The affidavit then particularises some of the articles that were published which reveal names against whom allegations were made Mr. Dinan asserts a public interest in the disclosure of these documents but he also denies that they are confidential. As there is law as well as fact in these submissions, I will deal with this assertion at a later stage. Mr. Dinan’s affidavit can be legitimately criticised for containing more submissions of law than assertions of fact. Nevertheless, I intend to cite in full paragraph 13 as it does encapsulate the case made by Post Publications.
“13. I do not accept that documents can be described as or regarded as confidential simply because they are circulated by the Tribunal. This is the assumption underlying the application as it is set out that there is a fear that documents will be published which are in the process of being circulated to parties for the next module. I am not aware of the contents of any of these documents but I do not accept that the Tribunal can by a determination decree that these documents must all be regarded as confidential irrespective of their nature or content. I say that it is clear from a perusal of the evidence given in previous modules, which is reported widely by this and other newspapers, that various documents are circulated by the Tribunal in advance of a public hearing which cannot in any circumstances be regarded as confidential notwithstanding that they are contained in a tribunal brief. Documents are on a daily basis referred to during the course of the Tribunal and then exhibited on the screens and may or may not be read into the evidence entirely. Many of these documents are matters concerning companies or title documents particularly in respect of the Planning Tribunal, and these are documents which are widely available to the public through various public bodies such as the Land Registry. Various documents concerning the constitution of companies have been referred to during the course of the evidence which were contained in the circulated brief. These are also documents which cannot be deemed to be confidential or to ever have been confidential. Yet these documents were contained in the circulated brief and it is the contention of the Tribunal that these matters are confidential merely because the Tribunal so regard them. For example, in paragraph 38 of the grounding affidavit of Marcelle Gribbin it is set out that the Tribunal is in the process of circulating a large number of confidential documents including statements to witnesses in advance of the public hearing on evidence relating to a new module. It is set out that the circulation of such documents in confidence is accepted by a written warning to all concerned that the documents and the contents thereof shall not be disclosed to any person. If this warning is in fact given with all documents which are circulated, which appears to be the case, then this of itself makes a nonsense of the basis for the allege confidentiality.”
The next few paragraphs of the affidavit are also taken up with argument mostly to the effect that the injunctions sought are too wide and too uncertain.
Ms. Gribbin replied to Mr. Dinan’s affidavit by a further affidavit of her own sworn on the 2nd February, 2005. The opening paragraphs mainly deal with refuting the suggestion that there was delay on the part of the Tribunal in asserting its complaints and pointing out the actions which the Tribunal had taken to prevent leaks including contact with the gardaí etc. Paragraphs 6 and 7 of this affidavit are important and are worth citing in full. They read as follows:
“6. I beg to refer to paragraphs 4, 7 and 13 of the affidavit of Mr. Anthony Dinan where he deals with the issue of confidentiality material. I say that the material forming the basis of the articles exhibited at exhibit A of the affidavit of Anthony Dinan was clearly confidential and had been circulated on a strictly confidential basis. I say that the Tribunal in the course of its private investigative work, which is mandated by statute, seeks statements from persons it is envisaged may be called as witnesses at the public hearing. I say that these statements and the contents of the brief circulated are confidential and remain so until they are opened at the public hearing.
7. It is accepted that documents such as copies of folios, company office searches and the like are not of themselves confidential documents. However, when such documents are circulated with and in the context of other documents including, in many cases, statements made by witnesses who will be called to give evidence to the Tribunal, all of the material in the folder circulated by the Tribunal are designated by the Tribunal to be confidential and are so named. Such documents are opened at a public sitting of the Tribunal. It is noteworthy that at no time that I am aware of has the defendant published details of a company office search without attempting to put the results of that search in context whether in relation to the names of the directors of the company, properties owned by the company, profits earned by the company or otherwise for commercial reasons.”
The next few paragraphs of the affidavit explain how the Tribunal’s policy is carried out in practice. When seeking narrative statements the Tribunal directs that they are confidential documents. A sample letter is exhibited. In the sample letter exhibited, the Tribunal requested a narrative statement and set out why such a statement was necessary namely, “…they will provide the Tribunal with a document which will be circulated in advance of your client’s evidence to those persons likely to be affected by his evidence so that they may have the opportunity, if they wish, to attend for the hearing of your client’s evidence and to cross-examine him or furnish rebuttal evidence.” The person is further informed “that the matters referred to above are the subject of the Tribunal’s confidential preliminary investigation. In due course some or all of these matters will come into the public domain at a hearing of the Tribunal. Until that time, you and your client are obliged to ensure the confidentiality of your dealings with the Tribunal.”
In paragraph 10 of her second affidavit, Ms. Gribbin, refers back to paragraph 36 of her previous affidavit and reiterates the point that “where documents are leaked in advance the Tribunal is not in a position to protect the constitutional rights of parties affected. In that regard the Tribunal is unable to effectively conduct its inquiries and effectively fulfil its statutory mandate.” She goes on to make the further point that “the leaking of such material acts as a disincentive to parties coming forward with information essential for the work of the Tribunal.” I think it important to quote in full also paragraph 12 of this second affidavit of Ms. Gribbin. The paragraph reads as follows:
“12. I say that the Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper forum of public hearings, that the full context and circumstances surrounding those allegations are made known at one and the same time as those allegations and that the party against whom the allegation is being made is given the proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the allegations are being made is given the opportunity to test these allegations by means of cross-examination within a reasonable time of those allegations being aired in a public forum.”
I would particularly draw attention to the use of the expression “the policy of confidentiality”. What this case is all about, in my view, is whether that policy as such is legal or not. It obviously impedes to some extent freedom of the press but the question is, having regard to the right to protection of the good names of persons involved and in particular the constitutional protection of those rights is such limitation not just reasonable but appropriate? In relation to some of the specific articles referred to in Mr. Dinan’s affidavit, Ms. Gribbin explains that in the case of the “Jim Kennedy” and “fifty councillors” stories, these form part of the “Coolamber” module and that the Tribunal had determined that these matters were to be inquired into in public and the brief or pack in respect of it had been circulated to limited parties. This circulation was in October, 2004 whereas the public hearings did not commence until the 7th December, 2004. The “Lenihan Flynn” and “Former Tanáiste” articles were written in circumstances where the Tribunal had directed that the parties were not to be named as those individuals were not yet on notice of the contents of the relevant statements. Ms. Gribbin asserts that the identification of the parties by Post Publications was a decision taken by the newspaper “in clear contempt and in breach of the directions of the Tribunal”. Mr. Dinan, of course, had alleged that the publication was in the public interest for the very reason that the parties had not been identified. Ms. Gribbin, for the reasons underlying all the Tribunal’s decisions, asserts quite the opposite. She says that the Tribunal is unable to agree that publication was in the public interest at that time. The non-disclosure of the names was itself in the public interest as those individuals were unaware of the contents of the statement “and were not able to exercise their constitutional rights and in particular their right to a good name.” In paragraph 21, Ms. Gribbin makes it clear that the order sought by the Tribunal “only extends to circumstances where the defendant is aware that the Tribunal has directed that documents are confidential. The Tribunal is not seeking to prohibit the publication of all information about the Tribunal nor in circumstances where the paper is unaware of a direction of the Tribunal.”
I turn now to the judgment of Kelly J., the trial judge. Having outlined the relevant evidence, he set out his “conclusions on the evidence”.
“1. In carrying out its functions the Tribunal has obtained information from third parties relevant to its inquiries.
2. Such information may consist of documents or statements.
3. When seeking narrative statements the Tribunal expressly represents that they will remain confidential until they come into the public domain at a hearing of the Tribunal. Until that time they will remain confidential.
4. In so far as documentary material is concerned it is subject to the protocol of the 14th January, 1998, which I have already set forth in this judgment.
5. On receipt of all of this information the Tribunal then collates and circulates all relevant documents (including the narrative statements of evidence of persons whom it proposes to call as witnesses at the public hearing at which such evidence will be tendered). This forms what has been referred to as a ‘brief’.
6. The circulation of such a brief is made to a limited number of persons in advance of the public hearing. In general these persons consist of those whose good name or reputation might be adversely affected if evidence of the type outlined in the narrative statements were to be given in public. This procedure is embarked upon with a view to giving such persons notice of the allegations so as to enable them to take whatever steps they believe appropriate in order to vindicate their reputations.
7. At the time when the brief material is circulated to this limited number of persons all of the material contained in it is directed by the Tribunal to be confidential. That is so regardless of the source or nature of the material which is contained in the brief. Thus, the Tribunal asserts that even public documents when contained in such brief are to be treated as confidential. Such confidentiality is to be maintained until the matters in the brief are opened at a public session of the Tribunal.
8. In circulating such a brief the Tribunal has made it clear that it purports to restrain disclosure of the entire contents of the brief.
9. This elaborate procedure is embarked on so as to ensure that the Tribunal conducts itself with constitutional propriety particularly with regard to the rights of third parties.
10. The Tribunal accepts the importance of the work carried out by the defendants in reporting on its hearings and the matters before it. The Tribunal does not accept that the defendants may report on matters arising out of documents which it has determined to be confidential.
11. The Tribunal rulings concerning confidentiality have not been honoured in the past. Many of the failures of the past in this regard have been deliberate and the Tribunal believes done to impede and frustrate its efforts. Nonetheless it has continued to work for the last eight years and this is the first time that an action of this sort has been taken by it.”
I find it necessary to comment on only three of these conclusions i.e. 7, 9 and 10. With regard to No. 7, as I understand it, the Tribunal is not asserting that a document which is in the public domain is in any circumstances a confidential document as such. This was expressly made clear in relation, for instance, to documents such as company searches and Land Registry Folios. The Tribunal, however, is asserting confidentiality pursuant to its own direction as to the fact that such a document has been included in the a particular brief. The Tribunal’s policy in this regard would seem to me to be reasonable, provided that it is legal, a question to be considered later in this judgment. A public document may be perfectly neutral per se as far as any question of injury to a person’s good name is concerned but if transmitted by the Tribunal to some person or persons in a particular context the effect may be quite different.
The learned trial judge has described in conclusion No. 9 the procedure adopted by the Tribunal as an “an elaborate procedure”. I have inferred, I hope correctly, that the word “elaborate” is used here in a somewhat pejorative sense. If so, for the reasons which I have already indicated, I would respectfully disagree with the learned trial judge. I think that provided it does not breach the Constitution or the Convention of Human Rights and provided it can be enforced, the procedure, even if it could be described as “elaborate” is quite sensible and probably necessary for the reasons that the Tribunal asserts to protect the constitutional rights of third parties.
The learned High Court judge is quite correct in conclusion No. 10 in his assertion that the Tribunal takes the view that it can impose confidentiality. But again for the same reasons and subject to the law to be considered later on in this judgment, I can see no objection to this approach.
The learned trial judge, in his judgment, then goes on to criticise (impliedly at least) the Tribunal in making no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material which is not covered by such an assurance. I think that there is a danger of confusion arising here. As I see it, there are two quite distinct aspects of confidentiality which have arisen in the functions of the Tribunal. One is that the Tribunal has been prepared to give undertakings as to confidentiality to persons who furnish it with statements or documents subject of course to the right of the Tribunal to make use of such statements and/or documents at public hearings. The question of what remedy or remedies a person who furnishes such statement or document would have against the Tribunal in the event of the Tribunal breaching such an undertaking does not arise for consideration in this case and indeed in my view, it has almost nothing to do with the case. It is the second aspect of confidentiality in the functioning of the Tribunal that does arise. That is the imposition by the Tribunal itself of an obligation of confidentiality in respect of the brief sent out. The learned trial judge is quite correct, of course, in noting that that purported imposition of confidentiality by the Tribunal extends well beyond documents or statements in respect of which express undertakings have been given by the Tribunal to the original person or persons who furnished them. The object for which the Tribunal purports to impose confidentiality would not be achieved if it confined its imposition to those documents or statements. There would indeed be a further practical problem. If the Tribunal in sending out its brief to interested persons had to sift through the contents and select for confidentiality only those in respect of which an express undertaking had been given, a letter accompanying the documents precisely specifying which document was to be confidential would have to be sent out. This might well prove time consuming and administratively impractical. Ideally, the letter accompanying the brief should expressly state that a document which is of its nature a public document would not of itself be subject to the confidentiality but that confidentiality would be required as to the fact of its conclusion in the brief. I do not think, however, that this omission should be fatal to the Tribunal’s claim in these proceedings as it is quite clear that no issue relating to the simple publishing by the newspaper of a public document arises. Nor indeed has it ever done so.
The learned trial judge, however, appears to take the view that the Tribunal can only impose confidentiality in relation to documents in respect of which the Tribunal itself has given an undertaking as to confidentiality to the provider of them. The judge refers to the background against which the application must be viewed. In this regard he refers to the right to free expression recognised under Article 40.6.1.i of the Constitution and to the later part of the Article which there is specific mention of the liberty of expression of the press. He refers to the Irish Times v. Ireland [1998] 1 IR 359 and in particular to the judgment of Barrington J. who held that the article protected a dissemination of information as well as the expression of convictions and opinions. I find it difficult to see a relevant connection between the noble views of Barrington J. on the one hand and the sleazy leaking of Tribunal documents on the other.
The learned trial judge then goes on to treat of the right of the freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms but he concedes that both the constitutional rights and the Convention rights are subject to limitations. Article 10 expressly permits restrictions “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
The learned High Court judge rightly then points out further that even at common law freedom of speech and the press will be protected and he refers in particular to R. v. Central Independent Television plc Fan. 192. But again I would make the comment that the noble sentiment expressed in that case by Hoffmann L.J. (as he then was) had no relevance to the issues in this case. The same is true, in my view, of other important authorities referred to in the judgment.
Among the quotes to which the learned trial judge has attached significance is the following quotation from the judgment of Hardiman J. in O’Callaghan v. The Tribunal Supreme Court (unreported 9th March 2005).
“In my view, the Tribunal cannot by the unilateral adoption of a ‘policy’ on its own part confer the quality of confidentiality, absolute unless the Tribunal itself waives it, on any material. To permit the Tribunal to do this would, in my view, be to allow it in effect to legislate for the deprivation of a party before it of rights to which he is entitled.”
That passage does not support the case being made by Post Publications Limited. It has never been in dispute that any undertaking as to confidentiality given at the investigative stage is subject to appropriate use being made of the document or information at a public hearing. What Hardiman J. was criticising was the decision of the Tribunal not to produce documentation at a public hearing when fair procedures required that it should be produced for the purpose of cross-examination. At p. 48 of his judgment, the learned High Court judge indicates that he is not in principle averse to an injunction being made against a newspaper leaking tribunal documents. The following passage from that page makes this clear.
“Had the Tribunal been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved by injunctive relief, there might be something to be said for the courts intervention; but that is not what is sought. Both in the affidavit evidence, the form of order sought and the submissions made, it is quite clear that the Tribunal seeks to go much further and to render confidential everything contained in a brief regardless of nature or source.
Even if one considers the position apart from O’Callaghan’s case could there be any basis to support such a wide claim of confidentiality?”
In the last analysis this is a matter of judgment and I respectfully differ from the view taken by the learned High Court judge for the reasons which I have already indicated.
The next section of the High Court judgment deals with the law of confidentiality as such. What is discussed essentially, and quite correctly, is the equitable rather than the contractual right to confidentiality. The trial judge set out useful principles enunciated by Megarry J. (as he then was) in Coco v. A.N. Clarke (Engineers) Limited [1969] R.P. C. 41. The judge quoted the following passage from the judgment of Megarry J.
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The learned trial judge with references to the first of these requirements refers to dicta of Lord Greene where he said that “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. Lord Greene’s reasoning was that there could be “no breach of confidence in revealing to others something which is already common knowledge”.
It is interesting and helpful to apply those principles of Megarry J. and Lord Greene M.R. to the present appeal. I have already made clear that it is not the case of the Tribunal that it can impose confidentiality on a public document per se. The information that the public document is included in the brief should be regarded as confidential in the view of the Tribunal and I think that such information given the context in which the Tribunal asserts that view does “have the necessary quality of confidence about it.” I believe this to be so even if in a few isolated cases it may well be that context is not of great significance. It is reasonable in all the circumstances for the Tribunal to have this policy because normally, the context in which the document is sent out will be relevant and should be kept confidential until the public hearing. The second requirement of Megarry J. is also fulfilled in that the Tribunal itself is imposing confidentiality on the person who is receiving it in advance of the public hearing. That is quite a normal basis for confidentiality and indeed newspapers themselves and media outlets are well accustomed to embargos being placed on information pending their being made public in the right way. The third requirement of Megarry J. is also fulfilled in this case as in my view the leaking of the information with knowledge of its confidentiality was clearly unauthorised. Such leaking was to the detriment of the Tribunal’s orderly conduct of its business.
The learned High Court judge in the view which he has taken has also relied on the following passage from the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspaper [1990] 1 AC 109.
“I start with a broad principle (which I do not intend in any way to be definitive) that a duty of confidence arises where confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent of which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious.”
I find nothing in that passage which if applied would disentitle the Tribunal to the relief which it seeks.
The learned trial judge then refers to the case which in this jurisdiction is the most relevant on the law of confidentiality in general. That is House of Spring Gardens v.Point Blank [1994] I.R. 611. The following passage from the judgment of Costello J. in the High Court which was approved by the Supreme Court reads:
“First, I think that the information must be information the release of which the owner believes will be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous headings must be reasonable. Fourth, I think that the information must be judged in light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information and trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
The learned trial judge commenting on that quotation from Costello J. observed as follows:
“Thus, it appears that, whether one is speaking about confidentiality in the context of trade or commerce or of the type dealt with in Attorney General v.Times Newspapers or indeed the present case, confidentiality can only attach to information which is truly confidential. It must have the necessary quality of confidence about it. Thus documents or information in the public domain cannot be regarded as confidential.”
I infer from that passage in his judgment that the learned trial judge takes the view that the information imparted as a matter of fair procedures in order to give advance notice to some person who could be damaged by evidence be given at a public hearing does not have “the necessary quality of confidence about it”. Once again, it would appear to me that his reasoning is based on the fact that the brief sent out may include a document which is in the public domain such as a company search or a folio. However, as I have already pointed out more than once, the response of the Tribunal to this objection is that it never intended nor could anyone have thought that it intended that a document in the public domain, as such, would be covered by an obligation of confidentiality. What the Tribunal was trying to ensure was that the fact of such documents being included in the brief would be kept confidential. At any rate, the brief for the most part would consist of copies of statements or documents that were not yet in the public domain and were intended by the Tribunal to be kept private until a public hearing for the purposes of overall fairness and the overall good order in conducting the Tribunal. In my view, those copy documents and statements have “the necessary quality of confidence about (them)”.
The obligation of confidentiality independently of contract is an equitable obligation as pointed out by Costello J. when he relied on a number of English authorities. It seems to me therefore irrelevant to the question of whether the newspaper was entitled to disseminate such information that it had not itself entered into some contract with the Tribunal as to confidentiality. Once it had notice of the policy of the Tribunal and of the intention that documentation sent out to these persons would be kept confidential pending public hearings it was bound in equity not to flout such confidentiality.
Again on the next page of his unreported judgment the learned trial judge makes clear quite correctly that “the only material which could be capable of protection is that which has the necessary quality of confidence about it.” But as I have already pointed out, his opinion that it did not have that “necessary quality” seems to be based on the fact that the briefs may, from time to time, contain documents which in the ordinary way were in the public domain. As I understand it, the learned High Court judge was not in principle against granting an injunction. What he objected to was the width of the injunction sought. In my opinion, the policy adopted by the Tribunal of sending out a brief and making the contents confidential is a reasonable one. I cannot imagine that the Sunday Business Post would have the slightest interest in publishing a document in the public domain unless it could put it into context. It is that context which the Tribunal quite reasonably wants to be kept private until the public hearing.
When reserving his judgment, the learned trial judge did suggest to the parties that he might want to re-enter the matter for discussion as to a narrower form of injunction than those sought. The course of action which the trial judge took in the event cannot be said to contravene any expressed intention. Nevertheless, I am satisfied that if the learned trial judge had re-entered the matter and indicated to the parties that he was unhappy with the form of injunction suggested, counsel for the Tribunal would have applied their minds to achieving a narrower form of injunction that might have been acceptable to the judge. The judge was in no way obliged to facilitate the parties in that way but I think that there was an element of expectation (I will deliberately not use the word “legitimate”) on the part of counsel for the Tribunal that if the outcome of the action was to be determined on the basis of the form of injunction sought it might seem likely that the judge would have permitted further discussion.
Before reaching my final conclusion, there is one other matter which was aired at the hearing of the appeal and with which I would need to deal. It has been suggested that for the Tribunal to create any element of confidentiality in respect of documents or information would require a special enactment in the Tribunal of Inquiries Acts or elsewhere. The argument then runs that the Tribunal being a creature of statute does not have inherent powers. I cannot accept this argument for a combination of reasons. First of all, the system of delivering an advance brief to somebody who might be adversely affected by evidence likely to emerge at a public hearing arises directly from the Constitution and the constitutional obligations both to adopt fair procedures and to protect the good names of persons. If the Tribunal did not owe that constitutional obligation it would be much simpler and more efficient from its point of view to keep everything secret until the public hearing. A constitutional obligation superimposed in this way and to some extent creating problems for the efficient running of the Tribunal cannot be more than is reasonable in all the circumstances and it, therefore, must necessarily embrace any desirable limitation that does not derogate from that obligation such, as in this case, the imposition of confidentiality. The right to impose such confidentiality is, therefore, merely an element in the carrying out of the constitutional obligation and where it is reasonable it would seem to me that there is an implied right by virtue of the Constitution to impose it. A special section is not therefore necessary. Furthermore and for the same reason the legal basis for the alleged restriction exists for the purposes of Article 10 of the European Convention of Human Rights. The imposed confidentiality is necessary for the “protection of the reputation or the rights of others.”
I am satisfied that the evidence establishes that there has been serious leaking over a number of years by the respondent’s newspaper and other newspapers of documents and information which would have been known to have been intended to be kept confidential pending a public hearing. I am equally satisfied that such leakages undermine the work of the Tribunal and that the Tribunal has a right to seek an injunction to stop it. It is perhaps unfortunate that at the hearing before the High Court the Tribunal did not place before the learned High Court judge alternative more precisely worded and somewhat narrower forms of injunctions but I do not think that on account of this, the court should take the view that no injunction of any kind should be granted. I have carefully considered the alternative slightly more modified form of injunction suggested at the hearing of this appeal by Mr. Paul O’Higgins, S.C.. I have already cited that form of draft injunction but I will cite it again now for clarity.
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing: –
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the document so circulated.”
I would allow the appeal by setting aside the order of the High Court and substituting for that order an injunction in those terms.
THE SUNDAY TIMES v. THE UNITED KINGDOM (No. 2)
– 13166/87 [1991] ECHR 50 [1991] ECHR 50, 14 EHRR 229, (1992) 14 EHRR 229AS TO THE FACTS
I. INTRODUCTION
A. The applicants
9. The applicants in this case (who are hereinafter together referred to as “S.T.”) are Times Newspapers Ltd, the publisher of the United Kingdom national Sunday newspaper The Sunday Times, and Mr Andrew Neil, its editor. They complain of interlocutory injunctions imposed by the English courts on the publication of details of the book Spycatcher and information obtained from its author, Mr Peter Wright.
B. Interlocutory injunctions
10. In litigation where the plaintiff seeks a permanent injunction against the defendant, the English courts have a discretion to grant the plaintiff an “interlocutory injunction” (a temporary restriction pending the determination of the dispute at the substantive trial) which is designed to protect his position in the interim. In that event the plaintiff will normally be required to give an undertaking to pay damages to the defendant should the latter succeed at the trial.
The principles on which such injunctions will be granted – to which reference was made in the proceedings in the present case – were set out in American Cyanamid Co. v. Ethicon Ltd([1975] Appeal Cases 396) and may be summarised as follows.
(a) It is not for the court at the interlocutory stage to seek to determine disputed issues of fact or to decide difficult questions of law which call for detailed argument and mature consideration.
(b) Unless the material before the court at that stage fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction, the court should consider, in the light of the particular circumstances of the case, whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.
(c) If damages would be an adequate remedy for the plaintiff if he were to succeed at the trial, no interlocutory injunction should normally be granted. If, on the other hand, damages would not provide an adequate remedy for the plaintiff but would adequately compensate the defendant under the plaintiff’s undertaking if the defendant were to succeed at the trial, there would be no reason to refuse an interlocutory injunction on this ground.
(d) It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or both that the question of balance of convenience arises.
(e) Where other factors appear evenly balanced, it is a counsel of prudence to take such measures as are calculated to preserve the status quo.
C. Spycatcher
11. Mr Peter Wright was employed by the British Government as a senior member of the British Security Service (MI5) from 1955 to 1976, when he resigned. Subsequently, without any authority from his former employers, he wrote his memoirs, entitled Spycatcher, and made arrangements for their publication in Australia, where he was then living. The book dealt with the operational organisation, methods and personnel of MI5 and also included an account of alleged illegal activities by the Security Service. He asserted therein, inter alia, that MI5 conducted unlawful activities calculated to undermine the 1974-1979 Labour Government, burgled and “bugged” the embassies of allied and hostile countries and planned and participated in other unlawful and covert activities at home and abroad, and that Sir Roger Hollis, who led MI5 during the latter part of Mr Wright’s employment, was a Soviet agent.
Mr Wright had previously sought, unsuccessfully, to persuade the British Government to institute an independent inquiry into these allegations. In 1987 such an inquiry was also sought by, amongst others, a number of prominent members of the 1974-1979 Labour Government, but in vain.
12. Part of the material in Spycatcher had already been published in a number of books about the Security Service written by Mr Chapman Pincher. Moreover, in July 1984 Mr Wright had given a lengthy interview to Granada Television (an independent television company operating in the United Kingdom) about the work of the service and the programme was shown again in December 1986. Other books and another television programme on the workings and secrets of the service were produced at about the same time, but little Government action was taken against the authors or the media.
D. Institution of proceedings in Australia
13. In September 1985 the Attorney General of England and Wales (“the Attorney General”) instituted, on behalf of the United Kingdom Government, proceedings in the Equity Division of the Supreme Court of New South Wales, Australia, to restrain publication of Spycatcher and of any information therein derived from Mr Wright’s work for the Security Service. The claim was based not on official secrecy but on the ground that the disclosure of such information by Mr Wright would constitute a breach of, notably, his duty of confidentiality under the terms of his employment. On 17 September he and his publishers, Heinemann Publishers Australia Pty Ltd, gave undertakings, by which they abided, not to publish pending the hearing of the Government’s claim for an injunction.
Throughout the Australian proceedings the Government objected to the book as such; they declined to indicate which passages they objected to as being detrimental to national security.
II. THE INTERLOCUTORY PROCEEDINGS IN ENGLAND AND EVENTS OCCURRING WHILST THEY WERE IN PROGRESS
A. The Observer and Guardian articles and the ensuing injunctions
14. Whilst the Australian proceedings were still pending, the United Kingdom national Sunday newspaper Observer and the United Kingdom national daily newspaper The Guardian published, on Sunday 22 and Monday 23 June 1986 respectively, short articles on inside pages reporting on the forthcoming hearing in Australia and giving details of some of the contents of the manuscript of Spycatcher. These two newspapers had for some time been conducting a campaign for an independent investigation into the workings of the Security Service. The details given included the following allegations of improper, criminal and unconstitutional conduct on the part of MI5 officers:
(a) MI5 “bugged” all diplomatic conferences at Lancaster House in London throughout the 1950’s and 1960’s, as well as the Zimbabwe independence negotiations in 1979;
(b) MI5 “bugged” diplomats from France, Germany, Greece and Indonesia, as well as Mr Kruschev’s hotel suite during his visit to Britain in the 1950’s, and was guilty of routine burglary and “bugging” (including the entering of Soviet consulates abroad);
(c) MI5 plotted unsuccessfully to assassinate President Nasser of Egypt at the time of the Suez crisis;
(d) MI5 plotted against Harold Wilson during his premiership from 1974 to 1976;
(e) MI5 (contrary to its guidelines) diverted its resources to investigate left-wing political groups in Britain.
The Observer and Guardian articles, which were written by Mr David Leigh and Mr Paul Lashmar and by Mr Richard Norton-Taylor respectively, were based on investigations by these journalists from confidential sources and not on generally available international press releases or similar material. However, much of the actual information in the articles had already been published elsewhere (see paragraph 12 above). The English courts subsequently inferred that, on the balance of probabilities, the journalists’ sources must have come from the offices of the publishers of Spycatcher or the solicitors acting for them and the author (see the judgment of 21 December 1987 of Mr Justice Scott; paragraph 40 below).
15. The Attorney General instituted proceedings for breach of confidence in the Chancery Division of the High Court of Justice of England and Wales against The Observer Ltd, the proprietors and publishers of the Observer, Mr Donald Trelford, its editor, and Mr Leigh and Mr Lashmar, and against Guardian Newspapers Ltd, the proprietors and publishers of The Guardian, Mr Peter Preston, its editor, and Mr Norton-Taylor.
The Attorney General sought permanent injunctions against the defendants (who are hereinafter together referred to as “O.G.”), restraining them from making any publication of Spycatcher material. He based his claim on the principle that the information in the memoirs was confidential and that a third party coming into possession of information knowing that it originated from a breach of confidence owed the same duty to the original confider as that owed by the original confidant. It was accepted that an award of damages would have been an insufficient and inappropriate remedy for the Attorney General and that only an injunction would serve his purpose.
16. The evidential basis for the Attorney General’s claim was two affidavits sworn by Sir Robert Armstrong, Secretary to the British Cabinet, in the Australian proceedings on 9 and 27 September 1985. He had stated therein, inter alia, that the publication of any narrative based on information available to Mr Wright as a member of the Security Service would cause unquantifiable damage, both to the service itself and to its officers and other persons identified, by reason of the disclosures involved. It would also undermine the confidence that friendly countries and other organisations and persons had in the Security Service and create a risk of other employees or former employees of that service seeking to publish similar information.
17. On 27 June 1986 ex parte interim injunctions were granted to the Attorney General restraining any further publication of the kind in question pending the substantive trial of the actions. On an application by O.G. and after an inter partes hearing on 11 July, Mr Justice Millett (sitting in the Chancery Division) decided that these injunctions should remain in force, but with various modifications. The defendants were given liberty to apply to vary or discharge the orders on giving twenty-four hours’ notice.
18. The reasons for Mr Justice Millett’s decision may be briefly summarised as follows.
(a) Disclosure by Mr Wright of information acquired as a member of the Security Service would constitute a breach of his duty of confidentiality.
(b) O.G. wished to be free to publish further information deriving directly or indirectly from Mr Wright and disclosing alleged unlawful activity on the part of the Security Service, whether or not it had been previously published.
(c) Neither the right to freedom of speech nor the right to prevent the disclosure of information received in confidence was absolute.
(d) In resolving, as in the present case, a conflict between the public interest in preventing and the public interest in allowing such disclosure, the court had to take into account all relevant considerations, including the facts that this was an interlocutory application and not the trial of the action, that the injunctions sought at this stage were only temporary and that the refusal of injunctive relief might cause irreparable harm and effectively deprive the Attorney General of his rights. In such circumstances, the conflict should be resolved in favour of restraint, unless the court was satisfied that there was a serious defence of public interest that might succeed at the trial: an example would be when the proposed publication related to unlawful acts, the disclosure of which was required in the public interest. This could be regarded either as an exception to the American Cyanamid principles (see paragraph 10 above) or their application in special circumstances where the public interest was invoked on both sides.
(e) The Attorney General’s principal objection was not to the dissemination of allegations about the Security Service but to the fact that those allegations were made by one of its former employees, it being that particular fact which O.G. wished to publish. There was credible evidence (in the shape of Sir Robert Armstrong’s affidavits; see paragraph 16 above) that the appearance of confidentiality was essential to the operation of the Security Service and that the efficient discharge of its duties would be impaired, with consequent danger to national security, if senior officers were known to be free to disclose what they had learned whilst employed by it. Although this evidence remained to be tested at the substantive trial, the refusal of an interlocutory injunction would permit indirect publication and permanently deprive the Attorney General of his rights at the trial. Bearing in mind, inter alia, that the alleged unlawful activities had occurred some time in the past, there was, moreover, no compelling interest requiring publication immediately rather than after the trial.
In the subsequent stages of the interlocutory proceedings, both the Court of Appeal (see paragraphs 19 and 34 below) and all the members of the Appellate Committee of the House of Lords (see paragraphs 35-36 below) considered that this initial grant of interim injunctions by Mr Justice Millett was justified.
19. On 25 July 1986 the Court of Appeal dismissed an appeal by O.G. and upheld the injunctions, with minor modifications. It referred to the American Cyanamid principles (see paragraph 10 above) and considered that Mr Justice Millett had not misdirected himself or exercised his discretion on an erroneous basis. It refused leave to appeal to the House of Lords. It also certified the case as fit for a speedy trial.
As amended by the Court of Appeal, the injunctions (“the Millett injunctions”) restrained O.G., until the trial of the action or further order, from:
“1. disclosing or publishing or causing or permitting to be disclosed or published to any person any information obtained by Peter Maurice Wright in his capacity as a member of the British Security Service and which they know, or have reasonable grounds to believe, to have come or been obtained, whether directly or indirectly, from the said Peter Maurice Wright;
2. attributing in any disclosure or publication made by them to any person any information concerning the British Security Service to the said Peter Maurice Wright whether by name or otherwise.”
The orders contained the following provisos:
“1. this Order shall not prohibit direct quotation of attributions to Peter Maurice Wright already made by Mr Chapman Pincher in published works, or in a television programme or programmes broadcast by Granada Television;
2. no breach of this Order shall be constituted by the disclosure or publication of any material disclosed in open court in the Supreme Court of New South Wales unless prohibited by the Judge there sitting or which, after the trial there in action no. 4382 of 1985, is not prohibited from publication;
3. no breach of this Order shall be constituted by a fair and accurate report of proceedings in (a) either House of Parliament in the United Kingdom whose publication is permitted by that House; or (b) a court of the United Kingdom sitting in public.”
20. On 6 November 1986 the Appellate Committee of the House of Lords granted leave to appeal against the Court of Appeal’s decision. The appeal was subsequently withdrawn in the light of the House of Lords decision of 30 July 1987 (see paragraphs 35-36 below).
B. The first-instance decision in Australia
21. The trial of the Government’s action in Australia (see paragraph 13 above) took place in November and December 1986. The proceedings were reported in detail in the media in the United Kingdom and elsewhere. In a judgment delivered on 13 March 1987 Mr Justice Powell rejected the Attorney General’s claim against Mr Wright and his publishers, holding that much of the information in Spycatcher was no longer confidential and that publication of the remainder would not be detrimental to the British Government or the Security Service. The undertakings not to publish were then discharged by order of the court.
The Attorney General lodged an appeal; after a hearing in the New South Wales Court of Appeal in the week of 27 July 1987, judgment was reserved. The defendants had given further undertakings not to publish whilst the appeal was pending.
C. Further press reports concerning Spycatcher; the Independent case
22. On 27 April 1987 a major summary of certain of the allegations in Spycatcher, allegedly based on a copy of the manuscript, appeared in the United Kingdom national daily newspaper The Independent. Later the same day reports of that summary were published in The London Evening Standard and the London Daily News.
On the next day the Attorney General applied to the Queen’s Bench Division of the High Court for leave to move against the publishers and editors of these three newspapers for contempt of court that is conduct intended to interfere with or prejudice the administration of justice. Leave was granted on 29 April. In this application (hereinafter referred to as “the Independent case”) the Attorney General was not acting – as he was in the breach of confidence proceedings against O.G. – as the representative of the Government, but independently and in his capacity as “the guardian of the public interest in the due administration of justice”.
Reports similar to those of 27 April appeared on 29 April in Australia, in The Melbourne Age and the Canberra Times, and on 3 May in the United States of America, in The Washington Post.
23. On 29 April 1987 O.G. applied for the discharge of the Millett injunctions (see paragraph 19 above) on the ground that there had been a significant change of circumstances since they were granted. They referred to what had transpired in the Australian proceedings and to the United Kingdom newspaper reports of 27 April.
The Vice-Chancellor, Sir Nicolas Browne-Wilkinson, began to hear these applications on 7 May but adjourned them pending the determination of a preliminary issue of law, raised in the Independent case (see paragraph 22 above), on which he thought their outcome to be largely dependent, namely “whether a publication made in the knowledge of an outstanding injunction against another party, and which if made by that other party would be in breach thereof, constitutes a criminal contempt of court upon the footing that it assaults or interferes with the process of justice in relation to the said injunction”. On 11 May, in response to the Vice-Chancellor’s invitation, the Attorney General pursued the proceedings in the Independent case in the Chancery Division of the High Court and the Vice-Chancellor ordered the trial of the preliminary issue.
24. On 14 May 1987 Viking Penguin Incorporated, which had purchased from Mr Wright’s Australian publishers the United States publication rights to Spycatcher, announced its intention of publishing the book in the latter country.
25. On 2 June 1987 the Vice-Chancellor decided the preliminary issue of law in the Independent case. He held that the reports that had appeared on 27 April 1987 (see paragraph 22 above) could not, as a matter of law, amount to contempt of court because they were not in breach of the express terms of the Millett injunctions and the three newspapers concerned had not been a party to those injunctions or to a breach thereof by the persons they enjoined. The Attorney General appealed.
26. On 15 June 1987 O.G., relying on the intended publication in the United States, applied to have the hearing of their application for discharge of the Millett injunctions restored (see paragraph 23 above). The matter was, however, adjourned pending the outcome of the Attorney General’s appeal in the Independent case, the hearing of which began on 22 June.
D. Serialisation of Spycatcher begins in The Sunday Times
27. On 12 July 1987 The Sunday Times, which had purchased the British newspaper serialisation rights from Mr Wright’s Australian publishers and obtained a copy of the manuscript from Viking Penguin Incorporated in the United States, printed – in its later editions in order to avoid the risk of proceedings for an injunction – the first instalment of extracts from Spycatcher. It explained that this was timed to coincide with publication of the book in the United States, which was due to take place on 14 July.
On 13 July the Attorney General commenced proceedings against S.T. for contempt of court, on the ground that the publication frustrated the purpose of the Millett injunctions.
E. Publication of Spycatcher in the United States of America
28. On 14 July 1987 Viking Penguin Incorporated published Spycatcher in the United States of America; some copies had, in fact, been put on sale on the previous day. It was an immediate best-seller. The British Government, which had been advised that proceedings to restrain publication in the United States would not succeed, took no legal action to that end either in that country or in Canada, where the book also became a best-seller.
29. A substantial number of copies of the book were then brought into the United Kingdom, notably by British citizens who had bought it whilst visiting the United States or who had purchased it by telephone or post from American bookshops. The telephone number and address of such bookshops willing to deliver the book to the United Kingdom were widely advertised in that country. No steps to prevent such imports were taken by the British Government, which formed the view that although a ban was within their powers, it was likely to be ineffective. They did, however, take steps to prevent the book’s being available at United Kingdom booksellers or public libraries.
F. Conclusion of the Independent case
30. On 15 July 1987 the Court of Appeal announced that it would reverse the judgment of the Vice-Chancellor in the Independent case (see paragraph 25 above). Its reasons, which were handed down on 17 July, were basically as follows: the purpose of the Millett injunctions was to preserve the confidentiality of the Spycatcher material until the substantive trial of the actions against O.G.; the conduct of The Independent, The London Evening Standard and the London Daily News could, as a matter of law, constitute a criminal contempt of court because publication of that material would destroy that confidentiality and, hence, the subject-matter of those actions and therefore interfere with the administration of justice. The Court of Appeal remitted the case to the High Court for it to determine whether the three newspapers had acted with the specific intent of so interfering (sections 2(3) and 6(c) of the Contempt of Court Act 1981).
31. The Court of Appeal refused the defendants leave to appeal to the House of Lords and they did not seek leave to appeal from the House itself. Neither did they apply to the High Court for modification of the Millett injunctions. The result of the Court of Appeal’s decision was that those injunctions were effectively binding on all the British media, including The Sunday Times.
G. Conclusion of the interlocutory proceedings in the Observer, Guardian and Sunday Times cases; maintenance of the Millett injunctions
32. S.T. made it clear that, unless restrained by law, they would publish the second instalment of the serialisation of Spycatcher on 19 July 1987. On 16 July the Attorney General applied for an injunction to restrain them from publishing further extracts, maintaining that this would constitute a contempt of court by reason of the combined effect of the Millett injunctions and the decision in the Independent case (see paragraph 30 above).
On the same day the Vice-Chancellor granted a temporary injunction restraining publication by S.T. until 21 July 1987. It was agreed that on 20 July he would consider the application by O.G. for discharge of the Millett injunctions (see paragraph 26 above) and that, since they effectively bound S.T. as well, the latter would have a right to be heard in support of that application. It was further agreed that he would also hear the Attorney General’s claim for an injunction against S.T. and that that claim would fail if the Millett injunctions were discharged.
33. Having heard argument from 20 to 22 July 1987, the Vice-Chancellor gave judgment on the last-mentioned date, discharging the Millett injunctions and dismissing the claim for an injunction against S.T.
The Vice-Chancellor’s reasons may be briefly summarised as follows.
(a) There had, notably in view of the publication in the United States (see paragraphs 28-29 above), been a radical change of circumstances, and it had to be considered if it would be appropriate to grant the injunctions in the new circumstances.
(b) Having regard to the case-law and notwithstanding the changed circumstances, it had to be assumed that the Attorney General still had an arguable case for obtaining an injunction against O.G. at the substantive trial; accordingly, the ordinary American Cyanamid principles (see paragraph 10 above) fell to be applied.
(c) Since damages would be an ineffective remedy for the Attorney General and would be no compensation to the newspapers, it had to be determined where the balance of convenience lay; the preservation of confidentiality should be favoured unless another public interest outweighed it.
(d) Factors in favour of continuing the injunctions were: the proceedings were only interlocutory; there was nothing new or urgent about Mr Wright’s allegations; the injunctions would bind all the media, so that there would be no question of discrimination; undertakings not to publish were still in force in Australia; to discharge the injunctions would mean that the courts were powerless to preserve confidentiality; to continue the injunctions would discourage others from following Mr Wright’s example.
(e) Factors in favour of discharging the injunctions were: publication in the United States had destroyed a large part of the purpose of the Attorney General’s actions; publications in the press, especially those concerning allegations of unlawful conduct in the public service, should not be restrained unless this was unavoidable; the courts would be brought into disrepute if they made orders manifestly incapable of achieving their purpose.
(f) The matter was quite nicely weighted and in no sense obvious but, with hesitation, the balance fell in favour of discharging the injunctions.
The Attorney General immediately appealed against the Vice-Chancellor’s decision; pending the appeal the injunctions against O.G., but not the injunction against S.T. (see paragraph 32 above), were continued in force.
34. In a judgment of 24 July 1987 the Court of Appeal held that:
(a) the Vice-Chancellor had erred in law in various respects, so that the Court of Appeal could exercise its own discretion;
(b) in the light of the American publication of Spycatcher, it was inappropriate to continue the Millett injunctions in their original form;
(c) it was, however, appropriate to vary these injunctions to restrain publication in the course of business of all or part of the book or other statements by or attributed to Mr Wright on security matters, but to permit “a summary in very general terms” of his allegations.
The members of the Court of Appeal considered that continuation of the injunctions would: serve to restore confidence in the Security Service by showing that memoirs could not be published without authority (Sir John Donaldson, Master of the Rolls); serve to protect the Attorney General’s rights until the trial (Lord Justice Ralph Gibson); or fulfil the courts’ duty of deterring the dissemination of material written in breach of confidence (Lord Justice Russell).
The Court of Appeal gave leave to all parties to appeal to the House of Lords.
35. After hearing argument from 27 to 29 July 1987 (when neither side supported the Court of Appeal’s compromise solution), the Appellate Committee of the House of Lords gave judgment on 30 July, holding, by a majority of three (Lord Brandon of Oakbrook, Lord Templeman and Lord Ackner) to two (Lord Bridge of Harwich – the immediate past Chairman of the Security Commission – and Lord Oliver of Aylmerton), that the Millett injunctions should continue. In fact, they subsequently remained in force until the commencement of the substantive trial in the breach of confidence actions on 23 November 1987 (see paragraph 39 below).
The majority also decided that the scope of the injunctions should be widened by the deletion of part of the proviso that had previously allowed certain reporting of the Australian proceedings (see paragraph 19 above), since the injunctions would be circumvented if English newspapers were to reproduce passages from Spycatcher read out in open court. In the events that happened, this deletion had, according to the Government, no practical incidence on the reporting of the Australian proceedings.
36. The members of the Appellate Committee gave their written reasons on 13 August 1987; they may be briefly summarised as follows.
(a) Lord Brandon of Oakbrook
(i) The object of the Attorney General’s actions against O.G. was the protection of an important public interest, namely the maintenance as far as possible of the secrecy of the Security Service; as was recognised in Article 10 para. 2 (art. 10-2) of the Convention, the right to freedom of expression was subject to certain exceptions, including the protection of national security.
(ii) The injunctions in issue were only temporary, being designed to hold the ring until the trial, and their continuation did not prejudge the decision to be made at the trial on the claim for final injunctions.
(iii) The view taken in the courts below, before the American publication, that the Attorney General had a strong arguable case for obtaining final injunctions at the trial was not really open to challenge.
(iv) Publication in the United States had weakened that case, but it remained arguable; it was not clear whether, as a matter of law, that publication had caused the newspapers’ duty of non-disclosure to lapse. Although the major part of the potential damage adverted to by Sir Robert Armstrong (see paragraph 16 above) had already been done, the courts might still be able to take useful steps to reduce the risk of similar damage by other Security Service employees in the future. This risk was so serious that the courts should do all they could to minimise it.
(v) The only way to determine the Attorney General’s case justly and to strike the proper balance between the public interests involved was to hold a substantive trial at which evidence would be adduced and subjected to cross-examination.
(vi) Immediate discharge of the injunctions would completely destroy the Attorney General’s arguable case at the interlocutory stage, without his having had the opportunity of having it tried on appropriate evidence.
(vii) Continuing the injunctions until the trial would, if the Attorney General’s claims then failed, merely delay but not prevent the newspapers’ right to publish information which, moreover, related to events that had taken place many years in the past.
(viii) In the overall interests of justice, a course which could only result in temporary and in no way irrevocable damage to the cause of the newspapers was to be preferred to one which might result in permanent and irrevocable damage to the cause of the Attorney General.
(b) Lord Templeman (who agreed with the observations of Lords Brandon and Ackner)
(i) The appeal involved a conflict between the right of the public to be protected by the Security Service and its right to be supplied with full information by the press. It therefore involved consideration of the Convention, the question being whether the interference constituted by the injunctions was, on 30 July 1987, necessary in a democratic society for one or more of the purposes listed in Article 10 para. 2 (art. 10-2).
(ii) In terms of the Convention, the restraints were necessary in the interests of national security, for protecting the reputation or rights of others, for preventing the disclosure of information received in confidence and for maintaining the authority of the judiciary. The restraints would prevent harm to the Security Service, notably in the form of the mass circulation, both now and in the future, of accusations to which its members could not respond. To discharge the injunctions would surrender to the press the power to evade a court order designed to protect the confidentiality of information obtained by a member of the Service.
(c) Lord Ackner (who agreed with the observations of Lord Templeman)
(i) It was accepted by all members of the Appellate Committee that: the Attorney General had an arguable case for a permanent injunction; damages were a worthless remedy for the Crown which, if the Millett injunctions were not continued, would lose forever the prospect of obtaining permanent injunctions at the trial; continuation of the Millett injunctions was not a “final locking-out” of the press which, if successful at the trial, would then be able to publish material that had no present urgency; there was a real public interest, that required protection, concerned with the efficient functioning of the Security Service and it extended, as was not challenged by the newspapers, to discouraging the use of the United Kingdom market for the dissemination of unauthorised memoirs of Security Service officers.
(ii) It would thus be a denial of justice to refuse to allow the injunctions to continue until the trial, for that would sweep aside the public-interest factor without any trial and would prematurely and permanently deny the Attorney General any protection from the courts.
(d) Lord Bridge of Harwich
(i) The case in favour of maintaining the Millett injunctions – which had been properly granted in the first place – would not be stronger at the trial than it was now; it would be absurd to continue them temporarily if no case for permanent injunctions could be made out.
(ii) Since the Spycatcher allegations were now freely available to the public, it was manifestly too late for the injunctions to serve the interest of national security in protecting sensitive information.
(iii) It could be assumed that the Attorney General could still assert a bare duty binding on the newspapers, but the question was whether the Millett injunctions could still protect an interest of national security of sufficient weight to justify the resultant encroachment on freedom of speech. The argument that their continuation would have a deterrent effect was of minimal weight.
(iv) The attempt to insulate the British public from information freely available elsewhere was a significant step down the road to censorship characteristic of a totalitarian regime and, if pursued, would lead to the Government’s condemnation and humiliation by the European Court of Human Rights.
(e) Lord Oliver of Aylmerton
(i) Mr Justice Millett’s initial order was entirely correct.
(ii) The injunctions had originally been imposed to preserve the confidentiality of what were at the time unpublished allegations, but that confidentiality had now been irrevocably destroyed by the publication of Spycatcher. It was questionable whether it was right to use the injunctive remedy against the newspapers (who had not been concerned with that publication) for the remaining purpose which the injunctions might serve, namely punishing Mr Wright and providing an example to others.
(iii) The newspapers had presented their arguments on the footing that the Attorney General still had an arguable case for the grant of permanent injunctions and there was force in the view that the difficult and novel point of law involved should not be determined without further argument at the trial. However, in the light of the public availability of the Spycatcher material, it was difficult to see how it could be successfully argued that the newspapers should be permanently restrained from publishing it and the case of the Attorney General was unlikely to improve in the meantime. No arguable case for permanent injunctions at the trial therefore remained and the Millett injunctions should accordingly be discharged.
H. Conclusion of the Australian proceedings; further publication of Spycatcher
37. On 24 September 1987 the New South Wales Court of Appeal delivered judgment dismissing the Attorney General’s appeal (see paragraph 21 above); the majority held that his claim was not justiciable in an Australian court since it involved either an attempt to enforce indirectly the public laws of a foreign State or a determination of the question whether publication would be detrimental to the public interest in the United Kingdom.
The Attorney General appealed to the High Court of Australia. In view of the publication of Spycatcher in the United States and elsewhere, that court declined to grant temporary injunctions restraining its publication in Australia pending the hearing; it was published in that country on 13 October. The appeal was dismissed on 2 June 1988, on the ground that, under international law, a claim – such as the Attorney General’s – to enforce British governmental interests in its security service was unenforceable in the Australian courts.
Further proceedings brought by the Attorney General against newspapers for injunctions were successful in Hong Kong but not in New Zealand.
38. In the meantime publication and dissemination of Spycatcher and its contents continued worldwide, not only in the United States (around 715,000 copies were printed and nearly all were sold by October 1987) and in Canada (around 100,000 copies printed), but also in Australia (145,000 copies printed, of which half were sold within a month) and Ireland (30,000 copies printed and distributed). Nearly 100,000 copies were sent to various European countries other than the United Kingdom and copies were distributed from Australia in Asian countries. Radio broadcasts in English about the book were made in Denmark and Sweden and it was translated into twelve other languages, including ten European.
III. THE SUBSTANTIVE PROCEEDINGS IN ENGLAND
A. Breach of confidence
39. On 27 October 1987 the Attorney General instituted proceedings against S.T. for breach of confidence; in addition to injunctive relief, he sought a declaration and an account of profits. The substantive trial of that action and of his actions against O.G. (see paragraph 15 above) – in which, by an amendment of 30 October, he now claimed a declaration as well as an injunction – took place before Mr Justice Scott in the High Court in November-December 1987. He heard evidence on behalf of all parties, the witnesses including Sir Robert Armstrong (see paragraph 16 above). He also continued the interlocutory injunctions, pending delivery of his judgment.
40. Mr Justice Scott gave judgment on 21 December 1987; it contained the following observations and conclusions.
(a) The ground for the Attorney General’s claim for permanent injunctions was no longer the preservation of the secrecy of certain information but the promotion of the efficiency and reputation of the Security Service.
(b) Where a duty of confidence is sought to be enforced against a newspaper coming into possession of information known to be confidential, the scope of its duty will depend on the relative weights of the interests claimed to be protected by that duty and the interests served by disclosure.
(c) Account should be taken of Article 10 (art. 10) of the Convention and the judgments of the European Court establishing that a limitation of free expression in the interests of national security should not be regarded as necessary unless there was a “pressing social need” for the limitation and it was “proportionate to the legitimate aims pursued”.
(d) Mr Wright owed a duty to the Crown not to disclose any information obtained by him in the course of his employment in MI5. He broke that duty by writing Spycatcher and submitting it for publication, and the subsequent publication and dissemination of the book amounted to a further breach, so that the Attorney General would be entitled to an injunction against Mr Wright or any agent of his, restraining publication of Spycatcher in the United Kingdom.
(e) O.G. were not in breach of their duty of confidentiality, created by being recipients of Mr Wright’s unauthorised disclosures, in publishing their respective articles of 22 and 23 June 1986 (see paragraph 14 above): the articles were a fair report in general terms of the forthcoming trial in Australia and, furthermore, disclosure of two of Mr Wright’s allegations was justified on an additional ground relating to the disclosure of “iniquity”.
(f) S.T., on the other hand, had been in breach of the duty of confidentiality in publishing the first instalment of extracts from the book on 12 July 1987 (see paragraph 27 above), since those extracts contained certain material which did not raise questions of public interest outweighing those of national security.
(g) S.T. were liable to account for the profits accruing to them as a result of the publication of that instalment.
(h) The Attorney General’s claims for permanent injunctions failed because the publication and worldwide dissemination of Spycatcher since July 1987 had had the result that there was no longer any duty of confidence lying on newspapers or other third parties in relation to the information in the book; as regards this issue, a weighing of the national security factors relied on against the public interest in freedom of the press showed the latter to be overwhelming.
(i) The Attorney General was not entitled to a general injunction restraining future publication of information derived from Mr Wright or other members of the Security Service.
After hearing argument, Mr Justice Scott imposed fresh temporary injunctions pending an appeal to the Court of Appeal; those injunctions contained a proviso allowing reporting of the Australian proceedings (see paragraphs 19 and 35 above).
41. On appeal by the Attorney General and a cross-appeal by S.T., the Court of Appeal (composed of Sir John Donaldson, Master of the Rolls, Lord Justice Dillon and Lord Justice Bingham) affirmed, on 10 February 1988, the decision of Mr Justice Scott.
However, Sir John Donaldson disagreed with his view that the articles in the Observer and The Guardian had not constituted a breach of their duty of confidence and that the claim for an injunction against these two newspapers in June 1986 was not “proportionate to the legitimate aim pursued”. Lord Justice Bingham, on the other hand, disagreed with Mr Justice Scott’s view that S.T. had been in breach of duty by publishing the first instalment of extracts from Spycatcher, that they should account for profits and that the Attorney General had been entitled, in the circumstances as they stood in July 1987, to injunctions preventing further serialisation.
After hearing argument, the Court of Appeal likewise granted fresh temporary injunctions pending an appeal to the House of Lords; O.G. and S.T. were given liberty to apply for variation or discharge if any undue delay arose.
42. On 13 October 1988 the Appellate Committee of the House of Lords (Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Goff of Chieveley and Lord Jauncey of Tullichettle) also affirmed Mr Justice Scott’s decision. Dismissing an appeal by the Attorney General and a cross-appeal by S.T., it held:
“(i) That a duty of confidence could arise in contract or in equity and a confidant who acquired information in circumstances importing such a duty should be precluded from disclosing it to others; that a third party in possession of information known to be confidential was bound by a duty of confidence unless the duty was extinguished by the information becoming available to the general public or the duty was outweighed by a countervailing public interest requiring disclosure of the information; that in seeking to restrain the disclosure of government secrets the Crown must demonstrate that disclosure was likely to damage or had damaged the public interest before relief could be granted; that since the world-wide publication of Spycatcher had destroyed any secrecy as to its contents, and copies of it were readily available to any individual who wished to obtain them, continuation of the injunctions was not necessary; and that, accordingly, the injunctions should be discharged.
(ii) (Lord Griffiths dissenting) that the articles of 22 and 23 June [1986] had not contained information damaging to the public interest; that the Observer and The Guardian were not in breach of their duty of confidentiality when they published [those] articles; and that, accordingly, the Crown would not have been entitled to a permanent injunction against both newspapers.
(iii) That The Sunday Times was in breach of its duty of confidence in publishing its first serialised extract from Spycatcher on 12 July 1987; that it was not protected by either the defence of prior publication or disclosure of iniquity; that imminent publication of the book in the United States did not amount to a justification; and that, accordingly, The Sunday Times was liable to account for the profits resulting from that breach.
(iv) That since the information in Spycatcher was now in the public domain and no longer confidential no further damage could be done to the public interest that had not already been done; that no injunction should be granted against the Observer and The Guardian restraining them from reporting on the contents of the book; and that (Lord Griffiths dissenting) no injunction should be granted against The Sunday Times to restrain serialising of further extracts from the book.
(v) That members and former members of the Security Service owed a lifelong duty of confidence to the Crown, and that since the vast majority of them would not disclose confidential information to the newspapers it would not be appropriate to grant a general injunction to restrain the newspapers from future publication of any information on the allegations in Spycatcher derived from any member or former member of the Security Service.”
B. Contempt of court
43. The substantive trial of the Attorney General’s actions for contempt of court against The Independent, The London Evening Standard, the London Daily News (see paragraph 22 above), S.T. (see paragraph 27 above) and certain other newspapers took place before Mr Justice Morritt in the High Court in April 1989. On 8 May he held, inter alia, that The Independent and S.T. had been in contempt of court and imposed a fine of £50,000 in each case.
44. On 27 February 1990 the Court of Appeal dismissed appeals by the latter two newspapers against the finding that they had been in contempt but concluded that no fines should be imposed. A further appeal by S.T. against the contempt finding was dismissed by the Appellate Committee of the House of Lords on 11 April 1991.
PROCEEDINGS BEFORE THE COMMISSION
45. In their application (no. 13166/87) lodged with the Commission on 31 July 1987, S.T. alleged that the interlocutory injunctions in question constituted an unjustified interference with their freedom of expression, as guaranteed by Article 10 (art. 10) of the Convention. They further claimed that, contrary to Article 13 (art. 13), they had no effective remedy before a national authority for their Article 10 (art. 10) complaint and that they were victims of discrimination in breach of Article 14 (art. 14).
46. The Commission declared the application admissible on 5 October 1989. In its report of 12 July 1990 (Article 31) (art. 31), it expressed the unanimous opinion that there had been a violation of Article 10 (art. 10), but not of Article 13 (art. 13) or Article 14 (art. 14).
The full text of the Commission’s opinion and of the concurring opinion contained in the report is reproduced as an annex to this judgment6????. On 2 February 1989, S.T lodged with the Commission a separate application – which is still pending before it – relating to the finding that the publication of the first extract from Spycatcher on 12 July 1987 constituted a breach of their duty of confidence (see paragraph 42 (iii) above). They informed the Court at its hearing on 25 June 1991 that they were also making a further application in respect of the finding that they had been in contempt of court (see paragraph 44 above).
FINAL SUBMISSIONS MADE TO THE COURT
47. At the hearing on 25 June 1991, S.T. requested the Court: (a) to find that the continuation of the injunctions on 30 July 1987 was a breach of Article 10 (art. 10); (b) to require the Government to pay to them the costs and expenses they had incurred in England and in Strasbourg; and (c) to make it clear that the test laid down in American Cyanamid Co. v. Ethicon Ltd did not comply with Article 10 (art. 10).
The Government, for their part, invited the Court to make the findings set out in their memorial, namely that there had been no breach of S.T.’s rights under Articles 10, 13 or 14 (art. 10, art. 13, art. 14).
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) OF THE CONVENTION
A. Introduction
48. S.T alleged that they had been victims of a violation of Article 10 (art. 10) of the Convention, which provides as follows:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
This violation was said to have arisen on account of the interlocutory injunctions which were initially imposed on O.G. and which, as a result of the Independent case, were effectively binding on S.T. too, through the doctrine of contempt of court (see paragraphs 17-19 and 30-31 above). The complaint was directed to the restrictions in force during the period from 30 July 1987 to 13 October 1988 and not to the restraints to which S.T. were (see paragraph 32 above) or might have been subject before that.
The allegation was contested by the Government, but accepted unanimously by the Commission.
49. The restrictions complained of clearly constituted, as was not disputed, an “interference” with S.T.’s exercise of their freedom of expression, as guaranteed by paragraph 1 of Article 10 (art. 10-1).
S.T. did not suggest that this interference was not “prescribed by law” or did not have an aim or aims that were legitimate under Article 10 para. 2 (art. 10-2) and the Court perceives no ground for holding otherwise. For the reasons developed in its Observer and Guardian judgment of today’s date (Series A no. 216, pp. 27- 29, paras. 50-57), it considers that the Millett injunctions were “prescribed by law” and had the primary aim of “maintaining the authority of the judiciary” and the further aim of protecting “national security”. To this it would only add that there is no material before it in the present case to suggest that the principles of the law of contempt of court, by the operation whereof the Millett injunctions bound S.T., did not meet the requirements flowing from the expression “prescribed by law”. Furthermore, those principles, being designed to prevent conduct intended to interfere with or prejudice the administration of justice (see paragraph 22 above), clearly had the aim of “maintaining the authority of the judiciary”.
B. Was the interference “necessary in a democratic society”?
1. General principles
50. Argument before the Court was concentrated on the question whether the interference complained of could be regarded as “necessary in a democratic society”. In this connection, the Court’s judgments relating to Article 10 (art. 10) – starting with Handyside (7 December 1976; Series A no. 24), concluding, most recently, with Oberschlick (23 May 1991; Series A no. 204) and including, amongst several others, Sunday Times (26 April 1979; Series A no. 30) and Lingens (8 July 1986; Series A no. 103) – enounce the following major principles.
(a) Freedom of expression constitutes one of the essential foundations of a democratic society; subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Freedom of expression, as enshrined in Article 10 (art. 10), is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any restrictions must be convincingly established.
(b) These principles are of particular importance as far as the press is concerned. Whilst it must not overstep the bounds set, inter alia, in the “interests of national security” or for “maintaining the authority of the judiciary”, it is nevertheless incumbent on it to impart information and ideas on matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.
(c) The adjective “necessary”, within the meaning of Article 10 para. 2 (art. 10-2), implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (art. 10).
(d) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 (art. 10) the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.
51. For the avoidance of doubt, and having in mind the written comments that were submitted in this case by “Article 19” (see paragraph 6 above), the Court would only add to the foregoing that Article 10 (art. 10) of the Convention does not in terms prohibit the imposition of prior restraints on publication, as such. This is evidenced not only by the words “conditions”, “restrictions”, “preventing” and “prevention” which appear in that provision, but also by the Court’s Sunday Times judgment of 26 April 1979 and its markt intern VerlagLANG=”en-GB”> GmbH and Klaus Beermann judgment of 20 November 1989 (Series A no. 165). On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest.
2. Application in the present case of the foregoing principles
52. S.T. contended that the interference complained of was not “necessary in a democratic society”. They relied in particular on the fact that Spycatcher had been published in the United States of America on 14 July 1987 (see paragraph 28 above), with the result that the confidentiality of its contents had been destroyed. Furthermore, Mr Wright’s memoirs were obtainable from abroad by residents of the United Kingdom, the Government having made no attempt to impose a ban on importation (see paragraph 29 above).
53. In the submission of the Government, the continuation of the interlocutory injunctions during the period from 30 July 1987 to 13 October 1988 nevertheless remained “necessary”, in terms of Article 10 (art. 10), for maintaining the authority of the judiciary and thereby protecting the interests of national security. They relied on the conclusion of the House of Lords in July 1987 that, notwithstanding the United States publication: (a) the Attorney General still had an arguable case for permanent injunctions against S.T., which case could be fairly determined only if restraints on publication were imposed pending the substantive trial; and (b) there was still a national security interest in preventing the general dissemination of the contents of the book through the press and a public interest in discouraging the unauthorised publication of memoirs containing confidential material.
54. The fact that the further publication of Spycatcher material could have been prejudicial to the trial of the Attorney General’s claims for permanent injunctions was certainly, in terms of the aim of maintaining the authority of the judiciary, a “relevant” reason for continuing the restraints in question. The Court finds, however, that in the circumstances it does not constitute a “sufficient” reason for the purposes of Article 10 (art. 10).
It is true that the House of Lords had regard to the requirements of the Convention, even though it is not incorporated into domestic law (see paragraph 36 above). It is also true that there is some difference between the casual importation of copies of Spycatcher into the United Kingdom and mass publication of its contents in the press. On the other hand, even if the Attorney General had succeeded in obtaining permanent injunctions at the substantive trial, they would have borne on material the confidentiality of which had been destroyed in any event – and irrespective of whether any further disclosures were made by S.T. – as a result of the publication in the United States. Seen in terms of the protection of the Attorney General’s rights as a litigant, the interest in maintaining the confidentiality of that material had, for the purposes of the Convention, ceased to exist by 30 July 1987 (see, mutatis mutandis, the Weber judgment of 22 May 1990, Series A no. 177, p. 23, para. 51).
55. As regards the interests of national security relied on, the Court observes that in this respect the Attorney General’s case underwent, to adopt the words of Mr Justice Scott, “a curious metamorphosis” (Attorney General v. Guardian Newspapers Ltd (no. 2) [1990] 1 Appeal Cases 140F). As emerges from Sir Robert Armstrong’s evidence (see paragraph 16 above), injunctions were sought at the outset, inter alia, to preserve the secret character of information that ought to be kept secret. By 30 July 1987, however, the information had lost that character and, as was observed by Lord Brandon of Oakbrook (see paragraph 36 (a) (iv) above), the major part of the potential damage adverted to by Sir Robert Armstrong had already been done. By then, the purpose of the injunctions had thus become confined to the promotion of the efficiency and reputation of the Security Service, notably by: preserving confidence in that Service on the part of third parties; making it clear that the unauthorised publication of memoirs by its former members would not be countenanced; and deterring others who might be tempted to follow in Mr Wright’s footsteps.
The Court does not regard these objectives as sufficient to justify the interference complained of. It is, in the first place, open to question whether the actions against S.T. could have served to advance the attainment of these objectives any further than had already been achieved by the steps taken against Mr Wright himself. Again, bearing in mind the availability of an action for an account of profits (see paragraphs 39-42 above), the Court shares the doubts of Lord Oliver of Aylmerton (see paragraph 36 (e)(ii) above) as to whether it was legitimate, for the purpose of punishing Mr Wright and providing an example to others, to use the injunctive remedy against persons, such as S.T., who had not been concerned with the publication of Spycatcher. Above all, continuation of the restrictions after July 1987 prevented newspapers from exercising their right and duty to purvey information, already available, on a matter of legitimate public concern.
56. Having regard to the foregoing, the Court concludes that the interference complained of was not “necessary in a democratic society” and that there was accordingly a violation of Article 10 (art. 10).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 10 (art. 14+10)
57. S.T. complained that, unlike themselves, publishers in the United States of America and elsewhere outside the United Kingdom were free to impart the information and ideas contained in Spycatcher to their readers. They alleged that on this account they had been victims of a violation of Article 14 of the Convention, taken in conjunction with Article 10 (art. 14+10), the former provision (art. 14) reading as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
58. The Court agrees with the Government and the Commission that this complaint has to be rejected.
Article 14 (art. 14) affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations (see, for example, the Fredin judgment of 18 February 1991, Series A no. 192, p. 19, para. 60). If and in so far as foreign publishers were not subject to the same restrictions as S.T., this was because they were not subject to the jurisdiction of the English courts and hence were not in a situation similar to that of S.T.
59. There was thus no violation of Article 14 taken in conjunction with Article 10 (art. 14+10).
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION
60. S.T. asserted that they had no effective remedy in England for their complaints: Articles 10 and 14 (art. 10, art. 14) of the Convention and their standards were not incorporated into English law and there were no equivalent domestic provisions, the standards laid down in American Cyanamid Co. v. Ethicon Ltd (see paragraph 10 above) being less strict. They alleged that on this account they had been victims of a violation of Article 13 (art. 13) of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
61. The Court agrees with the Government and the Commission that this allegation has to be rejected.
The thrust of S.T.’s complaint under the Convention was that the imposition of interlocutory injunctions constituted an unjustified interference with their freedom of expression and it is clear that they not only could but also did raise this issue in substance before the domestic courts. And it has to be recalled that the effectiveness of a remedy, for the purposes of Article 13 (art. 13), does not depend on the certainty of a favourable outcome (see the Soering judgment of 7 July 1989, Series A no. 161, p. 48, para. 122).
As regards the specific matters pleaded, the Court has held on several occasions that there is no obligation to incorporate the Convention into domestic law (see, for example, the James and Others judgment of 21 February 1986, Series A no. 98, p. 47, para. 84). Again, Article 13 (art. 13) does not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention (see the same judgment, p. 47, para. 85).
62. There has accordingly been no violation of Article 13 (art. 13).
IV. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
63. Under Article 50 (art. 50) of the Convention,
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
S.T. made no claim for compensation for damage, but they did seek under this provision reimbursement of their legal costs and expenses in the domestic and the Strasbourg proceedings, in a total amount of £224,340.67.
The Court has examined this issue in the light of the criteria established in its case-law and of the observations submitted by the Government and the applicants.
A. The domestic proceedings
64. The breakdown of the claim, totalling £84,219.80, in respect of costs and expenses referable to the domestic proceedings (the hearings in 1987 before the Vice-Chancellor, the Court of Appeal and the House of Lords; see paragraphs 32-36 above) is as follows:
(a) profit costs of the applicants’ solicitors: £36,143.50;
(b) solicitors’ disbursements: £9,507.53;
(c) counsel’s fees: £30,590.00;
(d) costs and interest paid by the applicants to the Attorney General: £7,978.77.
65. The Court’s observations on this claim are as follows.
(a) It agrees with the Government that the costs charged by the solicitors cannot be regarded as “reasonable as to quantum” for the purposes of Article 50 (art. 50).
(b) Whilst it is not in a position to enter into the detailed calculations involved, it shares the Government’s doubts as to whether all the disbursements can be considered to have been “necessarily” incurred. The figure to be allowed for this item should accordingly be reduced.
(c) It also considers that the total fees claimed for counsel exceed what can be regarded as reasonable as between the parties.
66. Having regard to the foregoing, the Court awards to the applicants, in respect of their costs and the amount paid to the Attorney General, the sum of £50,000.
B. The Strasbourg proceedings
67. The breakdown of the claim, totalling £140,120.87, in respect of costs and expenses referable to the proceedings before the Convention institutions is as follows:
(a) profit costs of the applicants’ solicitors: £82,779.30;
(b) solicitors’ disbursements: £16,791.57;
(c) counsel’s fees: £40,550.00.
68. The Court’s observations on this claim are as follows.
(a) The Government submitted that a reduction should be made if no breach of Articles 13 and 14 (art. 13, art. 14) were found. However, it would not be appropriate to make a significant reduction on this account, since the bulk of the work done by the applicants’ advisers related to Article 10 (art. 10) (see, mutatis mutandis, the Granger judgment of 28 March 1990, Series A no. 174, p. 21, para. 55).
(b) The remarks in paragraph 65 above concerning the solicitors’ charges, the disbursements and counsel’s fees also apply to the Strasbourg proceedings.
69. Having regard to the foregoing, the Court awards the sum of £50,000.
C. Conclusion
70. The total amount to be paid to the applicants is accordingly £100,000. This figure is to be increased by any value-added tax that may be chargeable.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 10 (art. 10) of the Convention;
2. Holds that there has been no violation of Article 13 (art. 13) or of Article 14 taken in conjunction with Article 10 (art. 14+10);
3. Holds that the United Kingdom is to pay, within three months, to the applicants jointly the sum of £100,000 (one hundred thousand pounds), together with any value-added tax that may be chargeable, for costs and expenses;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 26 November 1991.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) separate opinion of Mr De Meyer (concerning prior restraint), joined by Mr Pettiti, Mr Russo, Mr Foighel and Mr Bigi;
(b) separate opinion of Mr De Meyer (concerning domestic remedies), joined by Mr Pettiti;
(c) separate opinion of Mr Valticos.
R.R.
M.-A.E.
SEPARATE OPINION OF JUDGE DE MEYER (concerning prior restraint), JOINED BY JUDGES PETTITI, RUSSO, FOIGHEL AND BIGI
I concur in the result, but I cannot agree with the Court’s reasoning on the subject of prior restraint: my reasons are those stated in my opinion concerning the Observer and Guardian case7.
SEPARATE OPINION OF JUDGE DE MEYER (concerning domestic remedies), JOINED BY JUDGE PETTITI
For the reasons stated in my separate opinion concerning the Observer and Guardian case8, I cannot subscribe to the third sub-paragraph of paragraph 61 of the present judgment.
SEPARATE OPINION OF JUDGE VALTICOS
(Translation)
The observations contained in my separate opinion in the Observer and Guardian case9 apply equally to paragraph 61 of the present judgment.
1 Notes by the Registrar
The case is numbered 50/1990/241/312. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
2? The amended Rules of Court which entered into force on 1 April 1989 are applicable to the present case.
3
4?? Note by the Registrar
Case no. 51/1990/242/313
5??? Note by the Registrar
As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.
6???? Note by the Registrar
For practical reasons this annex will appear only with the printed version of the judgment (volume 217 of Series A of the Publications of the Court), but a copy of the Commission’s report is obtainable from the registry.
7 Series A no. 216, p. 46.
8 Series A no. 216, p. 47.
9 Series A no. 216, p. 48.
O’Brien v. Mirror Group Newspapers Ltd.
[2000] IESC 70
Judgments by Keane C.J., Denham J. and Geoghegan J.; Murphy J. and O’Higgins J. agreed with Keane C.J.
JUDGMENT delivered the 25th day of October 2000 by Keane C.J.
INTRODUCTION
1. This is an action for libel. The plaintiff is a well known and successful businessman: he holds, among others, the positions of Chairman of Esat Digifone, Esat Telecom and 98 FM. The first named defendant is the publisher of a newspaper called the Irish Mirror, of which the second named defendant is the Editor in Chief. The third and fourth named defendants are respectively the editor of the Irish edition and a journalist employed by the newspaper who wrote the article which gave rise to the action.
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(2)
2. The article in question appeared in the issue of the newspaper of the 10th June 1998 under the heading
“BURKE IN NEW £30,000 PROBE EXCLUSIVE BY KARL BROPHY.”
3. It was on the front page and began as follows:
“Former Minister Ray Burke is to be investigated for a THIRD alleged payment of £30,000, the Mirror revealed today.”
“The Flood Tribunal is to probe an anonymous claim that Mr. Burke received the donation from top radio boss, Denis O’Brien in 1989. According to the confidential letter – seen by the Irish Mirror – the former Dublin North TD allegedly received a donation of £30,000 when he was Minister for Communications responsible for the allocation of radio licences in Ireland.”
“Mr. O’Brien’s application for a licence for a station, 98 FM, was one of the two successful tenders for the lucrative Dublin area at that time.”
“Mr. Burke performed the new station’s official opening in November 1989. No evidence has yet been uncovered to support the allegations made in the note.”
“This may be a totally malicious effort to smear either Mr. Burke or Mr. O’Brien but the letter contains detailed allegations, said a top political source last night.”
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(3)
4. The article went on to refer to a total of eleven questions which had been sent to the plaintiff’s office concerning the allegations. The plaintiff was not prepared to answer four of the questions. Of the remaining questions, four were of particular relevance to these proceedings: the questions and answers were as follows:-
“Have you, or a company in which you are involved, ever made a single donation of, or in excess of, £3,000 to Mr. Raphael Burke?
ANSWER: No.
7. Did Mr. Raphael Burke, or agents on behalf of him or his political party, ever request a donation from you or a company in which you are, or were, involved? If so, how much was requested and was this request made before or after the awarding of the local radio licence to 98 FM?
ANSWER: No.
8. Did you ever feel that Mr. Raphael Burke, or agents on behalf of him or his political party, ever insinuated that if he made a donation to either him or his political party, the application for a radio licence for 98 FM would be favourably considered?
ANSWER: No.”
5. The article went on to refer to the possible political implications of the allegation being made against the plaintiff and concluded:-
“Denis O’Brien, the man who is alleged to have made the latest £30,000 donation, is no stranger to political controversy. His hugely successful mobile phone company, Esat Digifone, beat off heavy international
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(4)
competition to win Ireland’s second mobile telephone operating licence which was awarded by disgraced former Minister Michael Lowry in 1996. “The decision on the granting of licences was taken despite the fact that no official memorandum was ever taken to the Cabinet Meeting that was chaired by then Taoiseach John Bruton.
“However, a number of investigations carried into the awarding of the licence uncovered no impropriety.”
6. The article also gave details of Mr. O’Brien’s career and stated that the awarding of the licence to Esat Digifone would be examined by the Tribunal of which the sole member is Moriarty J. and which is at present investigating certain payments to politicians. It concluded, however, that
“Mr. O’Brien is confident the decision will stand after four previous investigations failed to turn up wrong doing.”
7. The plaintiff thereupon instituted these proceedings claiming damages for libel and pleading that the words meant, and were understood to mean, that
“(a) the plaintiff had paid a sum of money, described as £30,000, to Mr. Raphael Burke when he, Mr. Burke was a member of the government,
(b) the plaintiff paid the said money by way of a bribe to the said Mr. Burke,
(c) the plaintiff paid the said money for the purpose of securing benefits for himself and his business enterprises,
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(5)
(d) the plaintiff paid the said money for the purpose of securing a licence to broadcast for a radio station known as 98 FM,
(e) the plaintiff obtained benefits, including the said licence to broadcast, by corrupt means,
(f) the said radio licence was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke,
(g) the plaintiff had engaged in corrupt behaviour which warranted investigation by the tribunal established by resolution of the Houses of the Oireachtas and of which the sole member is the Honorable Mr. Justice Fergus Flood of the High Court,
(h) the investigation referred to in the next preceding paragraph would result in the uncovering of corrupt practices by the plaintiff on his own behalf and on behalf of his commercial companies,
(i) the plaintiff secured, or was instrumental in securing, a licence for the company, Esat Digifone, in circumstances which gave rise to suspicion of corrupt practices,
(j) the plaintiff was and is guilty of criminal conduct,
(k) the plaintiff’s conduct and behaviour warrants investigation by the appropriate legal authorities,
(l) the plaintiff should be prosecuted, tried and convicted of corruption and should suffer the full penalty of the law,
(m) the plaintiff is not fit or worthy to hold his position in the business community or the companies of which he is chairman.”
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(6)
8. In their defence, the defendants denied that the words complained of bore or were understood to bear or capable of bearing these meanings. They pleaded that the words complained of meant or were understood to mean that an anonymous letter had been sent to the Flood Tribunal making the allegation in question, that the Flood Tribunal would investigate the allegation and that the award of a mobile telephone licence to Esat Digifone had previously been investigated without any impropriety being found. To that extent, they pleaded that the words complained of were true in substance and in fact.
9. The action came on for hearing before McGuinness J. and a jury in the High Court. The following questions were left to the jury:
“In its natural and ordinary meaning or by way of innuendo does the article mean
(1) that the plaintiff had paid £30,000 to Mr. Raphael Burke then a member of the Government by way of a bribe?
(2) that the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM?
(3) that the licence for the radio station 98 FM was awarded to the plaintiff and its company on foot of the said alleged payment to Mr. Burke?
(4) that the plaintiff secured a licence for the company Esat Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices?
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(7)
(5) that the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal?
If the answer to any of the questions 1 -5 is yes, assess damages.”
10. The jury answered each of the questions 1 – 5 in the affirmative and assessed damages at £250,000. Judgment was accordingly entered for that sum and costs. The defendants have now applied to this court, by way of appeal, for an order setting aside so much of the verdict as assessed the damages at £250,000 and ordering a new trial of the action on this issue or, in the alternative, substituting a lower amount for the amount of £250,000.
11. The plaintiff has cross appealed against the refusal of the learned trial judge to leave the issues of aggravated, punitive and/or exemplary damages to the jury and has sought the assessment by this court of such damages or, in the alternative, in the event of an order directing a retrial, an order that these issues be also tried by the jury. He has also appealed against an order of the learned trial judge making no order as to the costs of a previous trial and seeks an order awarding him the costs of that trial.
12. The grounds set out in the defendant’s notice of appeal can be summarised as follows:-
(1) that the damages awarded were excessive;
(2) that the appropriate test for determining whether the assessment of damages by a jury should be set aside is whether the assessment was one
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(8)
which a reasonable jury would have thought necessary to compensate the plaintiff and re-establish his reputation;
(3) alternatively, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the plaintiff;
(4) that the learned trial judge misdirected the jury on the issue of damages in that counsel ought to have been permitted to refer and the judge ought to have referred
(a) to the purchasing power of any award which the jury might be minded to make and the income that it would produce;
(b) by way of comparison, to compensation scales in personal injury cases and previous libel awards made or approved by the Supreme Court;
(c) to the level of awards which counsel and the trial judge respectively considered to be appropriate;
(5) that the rules of law or practice restraining counsel and the trial judge in defamation trials from offering guidance of this nature are inconsistent with the provisions of the Constitution;
(6) that the size of the award was a violation of the legal and constitutional rights of the defendant and was an interference with the right of the defendant to freedom of expression in breach of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of Article 40 of the Constitution.
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(9)
13. As was made clear in the written and oral submissions on behalf of the defendants, in relying on grounds (4) to (6) above the defendants were inviting this court to depart from its recent decision in De Rossa .v. Independent Newspapers Plc. Supreme Court, 30 July, 1999, unreported. In that case, to which it will be necessary to refer in considerably more detail at a later stage, a majority of the court (Hamilton C.J., Barrington J., Murphy J. and Lynch J.) declined to apply in this jurisdiction the decision of the English Court of Appeal in John .v. MGN Limited [1996] 2 All ER 35 in which it was held that guidance of this nature on the assessment of damages should be given by trial judges to juries. In a dissenting judgment, Denham J. concluded that guidance of this nature should be provided.
14. As to ground (4), it was conceded on behalf of the defendants that the learned trial judge had properly charged the jury in this case in accordance with the law as stated by this court and that no criticism could be made of the directions on law which she gave to the jury.
15. There are, accordingly, five possible issues which arise for consideration:
(1) Having regard to the jurisprudence of this court as to the extent to which it is free to depart from its previous decisions, it should reconsider its decision in De Rossa
(2) If the court does consider itself free to reconsider that decision, whether it should now treat it as wrong in law;
(3) whether, in any event, applying the principles stated in De Rossa and earlier decisions of this court, the jury’s assessment of damages should be set aside;
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(4) whether the trial judge was wrong in law in refusing to leave the issue of aggravated and for exemplary or punitive damages to the jury; and
(5) whether the plaintiff shall have been awarded the costs of the earlier trial.
16. Clearly, if the defendants’ appeal is successful in relation to both (1) and (2) above, that, of itself, will require the setting aside of the jury’s verdict.
Stare decisis in the Supreme Court
In Attorney General and Another .v. Ryan’s Car Hire Limited [1965] IR 642 at p. 654, Kingsmill Moore J. explained the new approach being adopted by the court to the rule of stare decisis as follows:-
“However desirable certainty, stability and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous. Lord Halsbury himself [in London Street Tramways Company .v. London County Council [1898] AC 375] was forced to make some modification. Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked or conceded without argument, the authority of a decision may be weakened to vanishing point.
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In my opinion, the rigid rule of stare decisis must in a court of ultimate resort give place to a more elastic formula. Where such a court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases. What are exceptional cases? I have already given some examples of cases which I would consider exceptional, but I do not suggest that these closed the category and I do not propose to attempt to make a complete enumeration.”
17. Further guidance on the topic is to be found in the judgment of Henchy J. in Mogul of Ireland .v. Tipperary (NR) County Council [1976] IR 260 at p. 272:-
“A decision of the full Supreme Court (be it the pre-1961 or the post-1961 (Court,), given in a fully-argued case and on a consideration of all the relevant materials, should not normally be overruled merely because a later Court inclines to a different conclusion. Of course, if possible, error should not be reinforced by repetition or affirmation, and the desirability of achieving certainty, stability, and predictability should yield to the demands of justice. However, a balance has to be struck between rigidity and vacillation, and to achieve that balance the later Court must, at the least, be clearly of opinion that the earlier decision was erroneous. In Attorney General .v. Ryan’s Car Hire Ltd ., the judgment of the Court gave examples of what it called exceptional cases, the decision in which might be overruled if a later court thought them to be clearly wrong. While it was made clear that the examples given were not intended to close the category of exceptional cases, it is implicit from the use in that judgment of expressions
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such as ‘convinced’ and for compelling reasons’ and ‘clearly of opinion that the earlier decision was erroneous’ that the mere fact that a later Court, particularly a majority of the members of a later Court, might prefer a different conclusion is not in itself sufficient to justify overruling the earlier decision. Even if the later Court is clearly of opinion that the earlier decision was wrong, it may decide in the interests of justice not to overrule it if it has become inveterate and if in a widespread or fundamental way, people have acted on the basis of its correctness to such an extent that greater harm would result from overruling it than from allowing it to stand. In such cases the maxim communis error facit jus applies….
“We are concerned here with a pure question of statutory interpretation which was fully argued and answered in [ Smith .v. Cavan and Monaghan County Councils [1949] IR 322] after mature consideration. There are no new factors, no shift in the underlying considerations, no suggestion that the decision has produced untoward results not within the range of that court’s foresight. In short, all that has been suggested to justify a rejection of that decision is that it was wrong. Before such a volte-face could be justified it would first have to be shown that it was clearly wrong. Otherwise the decision to overrule it might itself become liable to be overruled. In my opinion, counsel for the applicants have, at most, established no more than that the interpretation for which they contend might possibly be preferred to that which commended itself to the court in Smith’s case. That is not enough. They should show that the decision in Smith’s case was clearly wrong and that justice requires that it should be overruled. They have not
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done so. I would therefore decline the invitation to overrule the decision in Smith’s case.”
18. The court is not in this case concerned with a pure question of statutory interpretation. However, I am satisfied that the observations of Henchy J. in that case should not be confined to cases in which the courts are concerned with the interpretation of a statute. It is, accordingly, necessary to consider the application of those principles, and the statement of the law by Kingsmill Moore J. in the earlier decision, to De Rossa .
Rossa .v. Independent Newspapers Plc.
19. The plaintiff in that case brought proceedings for libel arising out of an article published in the Sunday Independent which he said meant, and was understood to mean, that he was aware of criminal activities of a serious nature on the part of a political party of which he was the leader and had tolerated those activities. At the time the article was published, the plaintiff was engaged in negotiations with leaders of other political parties with a view to participating in a proposed coalition government, a fact which was referred to in the article itself. In their defence, the defendants admitted that the words complained of meant that the plaintiff was now the leader of a party which had previously received funds raised as a result of criminal activities, but, save to that extent, denied that words complained of bore, or were capable of bearing, the meanings assigned to them by the plaintiff.
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20. There were three trials of the action. The first lasted eight days, at which stage the jury were discharged because of the actions of the defendants. The second trial lasted fifteen days and resulted in a disagreement by the jury. The third trial lasted eleven days. During the course of each of the trials, the plaintiff was subjected to what were described in the judgment of Hamilton C.J. as
“immensely prolonged and hostile cross examinations”
by counsel for the defendants.
21. The following questions were submitted to the jury and answered by them as follows:-
“1. Do the words complained of mean –
(a) that the plaintiff was involved in or tolerated serious crime?
ANSWER: Yes
(b) that the plaintiff personally supported anti-semitism and violent communist oppression
ANSWER: Yes
2. If the answer to 1. or any part thereof is ‘yes’ assess damages
ANSWER: £300,000.”
22. The defendants appealed against the assessment of damages by the jury. On the hearing of the appeal, it was conceded on their behalf that the trial judge had directed the jury in accordance with the generally accepted practice, but it was submitted that this was a practice which was inconsistent with the provisions of the Constitution and of the European Convention for the Protection of Human Rights and Fundamental Freedoms. It was submitted that, in order to bring the law into conformity with the
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23. Constitution and the Convention, specific guidelines should be given by the trial judge and counsel to the jury in defamation actions and that they should include
(a) a reference to the purchasing power of any award which the jury might be minded to make and the income which the award would produce;
(b) a reference to what the trial judge and counsel considered to be the appropriate level of damages;
(c) a reference by way of comparison by counsel and the trial judge to awards made in respect of personal injuries and to awards made in previous libel cases.
24. The defendants relied in support of those submissions on the decision of the English Court of Appeal in John .v. MGN Ltd . and of the Court of Human Rights in Tolstoy Miloslavsky .v. The United Kingdom, [1995] 20 EHRR 442.
25. The arguments advanced in that case, on behalf of the defendants, were, accordingly, virtually identical with those advanced on behalf of the appellants in the present case. In a lengthy written judgment with which Barrington J., Murphy J. and Lynch J. agreed, Hamilton C.J., having cited in full the relevant provisions of the Constitution and the Convention and cited extensively passages from earlier judgments of this court, of the Court of Appeal and House of Lords in England and of the Court of Human Rights in Tolstoy, concluded that the existing practice was not inconsistent with the Constitution or the Convention and that the guidelines proposed by the English Court of Appeal should not be adopted in this jurisdiction. He went on to deal with the alternative argument on behalf of the appellants – that the award of damages was in any
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event excessive – and concluded that the damages, although substantial, were not disproportionate to the injury suffered by the plaintiff and that the award should not be set aside.
26. In a dissenting judgment, Denham J., who also reviewed at some length the relevant authorities in this and other jurisdictions, concluded that the guidelines recommended by the Court of Appeal in John should be adopted in this jurisdiction. She was also satisfied that, in any event, the award of damages in that case was excessive and, on principles of reasonableness and proportionality, would have reduced it to £150,000.
27. It was not suggested by counsel for the appellants in the present case that the majority decision in De Rossa was given in ignorance of an earlier authority of compelling validity or that a relevant point had been entirely overlooked or conceded without argument. The decision was, however, criticised on two grounds.
28. First, it was submitted that, although the decision of the European Court of Human Rights in Tolstoy Miloslavsky .v. United Kingdom , which had been strongly relied on on behalf of the defendants in that case, was discussed in the judgment of Hamilton C.J., the judgment had insufficient regard to some important features of the decision and in particular to paragraphs 46 to 51 inclusive of the judgment.
29. Secondly, it was submitted that, while the judgment also considered the decision of the Court of Appeal in John, it proceeded on what was said to be the erroneous basis
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that the criteria laid down by this court in Barrett .v. Independent Newspapers Limited [1986] IR 13, for determining whether an award of damages in a defamation action by a jury should be set aside on appeal were consistent with the requirements of Article 10 of the Convention and Article 40.6.1 of the Constitution.
30. In considering these criticisms, it is necessary to refer at the outset to Tolstoy. The plaintiff in the proceedings which gave rise to the case in the European Court, Lord Aldington, had been awarded damages for libel of £1,500,000 by a High Court jury. The defamatory statements appeared in a pamphlet written by the applicant and it was not in issue in that court that the defamation was of so serious a nature as to justify a very substantial award of damages.
31. The first ground of challenge to the award in the European Court was that the law in England as to the respective roles of the judge and jury in libel actions was such that it would have been impossible for his legal advisers to predict that an award of these dimensions would have been made and that, accordingly, the interference with the applicant’s right to freedom of expression which the award constituted was not “prescribed by law” within the meaning of Article 10(2) of the Convention. This argument was rejected by the court.
32. The second ground of challenge was that the interference with the plaintiff’s right to freedom of expression constituted by the award was not “necessary in a democratic society” within the meaning of Article 10.2, since the amount of the damages awarded was disproportionate to the legitimate aim of protecting Lord Aldington’s
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reputation or rights. The applicant relied on the fact that, since the award in the instant case had been made, the Court of Appeal itself had decided in Rantzen .v. Mirror Group Newspapers (1986) Ltd. [1993] 4 All ER 975, that the existing law allowed too great a latitude to the jury. The European Court upheld the applicant’s challenge on this ground.
33. In the course of the judgment, the court, having observed that the approach adopted in the different Contracting States in this area may differ greatly from one state to another and that the competent national authorities, being better placed than the European Court to assess the matter, should enjoy a wide margin of appreciation, summed up their conclusions as follows:-
“49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.
“However, the Court takes note of the fact that the applicant himself and his counsel accept that if the jury were to find libel, it would have to make a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it sought if it since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.
“The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord
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Aldington. The sum awarded was three times the size of the highest libel award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantive national law applicable at the time fails itself to provide a requirement of proportionality.
“50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case, Rantzen . v. Mirror Group Newspapers Limited the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood -required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge should give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal taken under s. 8 of the Courts and Legal Services Act, 1990 would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which was
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necessary to award him to provide adequate compensation and to re-establish his reputation.”
“The court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.
“51. Accordingly, having regard to the size of the award in the applicant’s case and in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.”
34. In his judgment in De Rossa Hamilton C.J., having cited in full the passage I have just quoted from the judgment of the court in Tolstoy, summarises the effect of the passage as follows:
“It is clear from the foregoing that the primary reason for the court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
“The court gave approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen’s case.”
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35. I find it difficult to understand, in the light of that passage, how it can seriously be suggested that the judgment of the learned Chief Justice in De Rossa rested on any misunderstanding whatever as to the nature of the decision in Tolstoy.
36. As to the second ground of criticism, it is certainly the case that, having set out in full the observations of Henchy J. in Barrett .v. Independent Newspapers Ltd. in which he made it clear that the test for determining whether an award should be set aside as being excessive was whether it was so disproportionately high that it should not be allowed to stand, Hamilton C.J. went on to say:
“The obligations arising from the provisions of the Constitution and the Conventions are met by the law of this State which provides that the award must always be reasonable and fair and bear a due correspondence with the injuries suffered and by the requirement that, if the award is disproportionately high, it would be set aside.”
37. It is clear that, in arriving at that view, the learned Chief Justice was influenced by the fact that, as is beyond argument, two factors determined the outcome of the decision in Tolstoy, i.e. the size of the award and the state of the law before Rantzen. If the award had been significantly lower and could be regarded as being proportionate to what was admitted to be a very serious libel indeed, the result might have been different.
38. That is a view of the decision in Tolstoy, with which, of course, issue can legitimately be taken. But that is not what is urged upon us in this case. We are being
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asked to hold that not merely is the carefully considered and reasoned view of Hamilton C.J. wrong: we are being asked to hold that it is so “clearly wrong” that there are now “compelling reasons” why it should be overruled and that, indeed, justice requires that it be overruled.
39. The court, moreover, was invited to overrule the decision less than a year after it was pronounced. There is, of course, no guarantee whatever that, were it to be so overruled, within a relatively short period of time the court might not be persuaded that this decision in turn was “clearly wrong” and must itself be overruled. The stage would have been reached at which the doctrine of stare decisis in this court would have been seriously weakened and the certainty, stability and predictability of law on which it is grounded significantly eroded.
40. In addition, the court is urged to overrule the decision on the ground that, apart altogether from the two criticisms advanced of the reasoning in the majority judgment, the court should in any event have followed the decision of the Court of Appeal in John as to do otherwise would be to fail to give effect to the guarantees of freedom of expression contained in the Constitution and the Convention. The observations I have already made as to the two grounds of criticism apply with equal force to that submission. Having cited extensively from the judgments of the Court of Appeal in Rantzen and John, Hamilton C.J. said:-
“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages,
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a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages.”
“It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.”
“I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”
“The assessment of damages in a defamation action instituted in the High Court was always a matter for the jury and that was not in any way altered by the provisions of the Courts Act, 1988, which provided that certain actions, including claims for damages for personal injuries, should not be tried by a jury.”
41. The learned Chief Justice went on to express his preference for the conclusion reached in Rantzen’s case to that reached in John’s case on the question as to whether or not references to awards in personal injuries actions should be permitted. The view in the former case had been that they should not be referred to and the learned Chief Justice pointed out that in Cassell and Co. Limited .v.Broome [1972] 1 All ER 801 at
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824, Lord Hailsham L.C. had made it clear that there were serious difficulties in comparing awards of damages for libel with damages for personal injuries.
42. Finally, the learned Chief Justice drew attention to what he considered an important feature of the decisions in Rantzen and John, i.e. that they followed the enactment in England and Wales of s. 8(2) of the Courts and Legal Services Act, 1990 and the introduction of RSC Order 59, r. 11(4) empowering the Court of Appeal for the first time to substitute for the sum awarded by the jury such sum as appeared to the court to be proper. In this jurisdiction, of course, the court has for some time now been prepared in actions for damages for personal injuries to substitute for the sum awarded by the High Court such sum as the court thinks appropriate. That power, however, has never been exercised by the court in cases of defamation.
43. Again, a different view could legitimately be taken from that expressed by Hamilton C.J. and assented to by the majority. However, for the reasons I have already given when considering the first ground of criticism, I have no doubt that that fact of itself could not justify this court in overruling the decision.
44. In my view, accordingly, the appeal in the present case should be dealt with on the basis that the law is as stated in the judgment of Hamilton C.J. in De Rossa . It follows, as was conceded on behalf of the defendants, that the award in this case cannot be set aside on the ground that the learned trial judge did not follow the guidelines laid down by the Court of Appeal in John and directed the jury as to the law in accordance
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with De Rossa . I am satisfied, accordingly, that the appellants cannot succeed in this appeal on the first two issues which I have identified.
Whether the award should be set aside as disproportionately high
45. The second issue is as to whether the award should in any event be set aside, applying the law as laid down in Barrett and De Rossa . In considering that issue, I think it is important to bear in mind that there is nothing in the judgments of Henchy J. in Barrett or Hamilton C.J. in De Rossa to indicate that this court is precluded, on the hearing of an appeal, from determining the appeal in the light of awards in other defamation cases which have been the subject of appeals to this court. No doubt a degree of caution is called for in making such comparisons, since in cases of defamation, more perhaps than in almost any other action in tort, the facts which have to be considered by the jury vary widely from case to case. Moreover, as Lord Hailsham pointed out in Cassell and Co. Limited .v.Broome , when drawing the distinction between damages in defamation cases and damages for personal injuries
“What is awarded is …a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”
46. Provided those qualifications are borne in mind, some assistance may be obtained from the views expressed by this court as to the damages awarded in particular cases when those awards were either upheld or set aside.
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47. The general principle which must be applied is as stated by Henchy J. in Barrett in the following passage:-
“a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It was so disproportionately high that in my view it should not be allowed to stand.”
48. It is accepted that the award of damages in this case, if it is not set aside by this court, will be the second highest award of damages so upheld, the highest being the award in De Rossa . In my view,subject again to the qualifications, I have emphasised, it is legitimate to compare the award in this case with De Rossa for the purpose of determining whether it is so disproportionately high that it should not be allowed to stand.
49. The award can also, in my view, be legitimately compared with the award in McDonagh .v. Newsgroup Newspapers Limited Supreme Court, 23rd November, 1993, unreported, where the article complained of was found by the jury to mean inter alia that the plaintiff, who is a member of the Bar and who had attended an inquest (as an observer on behalf of the Irish government) into the deaths of three members of the Provisional IRA who had been shot by the British Army in Gibraltar, was a sympathiser with terrorist causes. They assessed damages at £90,000. An appeal having been brought to this court on the ground inter alia that the damages were so
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excessive as to require intervention, the court declined to set the award aside. Speaking for the court, Finlay C.J. said:-
“A statement [that the plaintiff was abusing the professional function entrusted to him by his client] and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”
50. It should also be noted that, in declining to set aside the award in De Rossa Hamilton C.J. said that:
“The jury found that the words complained of by the Respondent meant that the Respondent was involved in or tolerated serious crime and personally supported anti-semitism and violent Communist oppression.”
“If these allegations were true, the Respondent was guilty of conduct, which was not only likely to bring him into disrepute with right-minded people but was such as to render him unsuitable for public office.”
“No more serious allegations could be made against a politician such as the Respondent herein.”
“Having regard to the serious nature of the said libel, its potential effect on the career of the Respondent, and the other considerations as outlined
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herein, it would appear to me that the jury would have been justified in going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”
51. In the present case, the article complained of stated that the plaintiff had paid £30,000 to a Government Minister by way of a bribe for the purpose of securing a licence for a radio station and obtained the licence as a result of the bribe, that he had also secured a licence for ESAT Digifone in circumstances giving rise to a suspicion of bribery or corrupt practices and that the activities warranted investigation by the Flood Tribunal. These were undoubtedly seriously defamatory statements which justified the award of substantial damages. However, the case must be approached, in my view, on the basis that the damages awarded are in the highest bracket of damages appropriate in any libel case. They are comparable to the general damages awarded in the most serious cases of paraplegic or quadriplegic injuries and, relatively speaking, are in the same bracket as the damages awarded in De Rossa . The libel, however, although undoubtedly serious and justifying the award of substantial damages, cannot be regarded as coming within the category of the grossest and the most serious libels which have come before the courts.
52. In this context, a comparison with De Rossa is to some extent at least illuminating. In the latter case, the libel complained of could not have been of a more serious character, alleging, as it did, that the plaintiff supported some of the vilest activities of totalitarian regimes in the twentieth century and was personally involved in or condoned serious crime. On any view, that is a significantly more damaging and
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serious libel than the admittedly serious statements made concerning the plaintiff in the present case. It was moreover made in a newspaper with an estimated readership of over a million people: the Irish Mirror is read by approximately 130,000 people. The plaintiff in De Rossa was a prominent politician who was the subject of particular media attention at the time the libel was published, since the party he led was engaged in negotiations which they hoped would result in their participation in a coalition government. It is acknowledged that the plaintiff in these proceedings enjoys a considerable reputation as a businessman but he would not be as well known to the general public as the plaintiff in De Rossa who, in common with other leading politicians, was the subject of constant media attention. Finally, the plaintiff in De Rossa had to go through three protracted High Court actions in front of a jury before his reputation was finally vindicated by the jury and was subjected to prolonged and hostile cross-examination. In the present case, as in De Rossa a somewhat qualified plea of justification was advanced, but does not appear to have been seriously pursued: indeed, the cross-examination by counsel on behalf of the defendants as recorded in the transcript could hardly be regarded as being particularly prolonged or hostile.
53. A comparison with McDonagh – where, as already noted, the damages were described by Finlay C.J. as being “at the top of the permissible range” – is also of some assistance. The plaintiff in that case, although a member of the Bar in good standing, would, like many other barristers in a similar category, be almost wholly unknown outside the legal profession. In terms of his public reputation, the plaintiff in the present case would undoubtedly enjoy a more extensive reputation with the general public than the plaintiff in McDonagh, but, as I have already indicated, a significantly
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more confined reputation than the plaintiff in De Rossa . As against that, the allegation concerning the plaintiff in that case was at least as serious as, if not more serious than, the allegation concerning the plaintiff in the present case. It must also be borne in mind, of course, that the case was decided seven years ago and that one would have to take into account the effects of inflation since then.
54. Ultimately, however, this case has to be decided having regard to its own particular facts and circumstances. I am conscious of the care which must be exercised by an appellate court before it interferes with the assessment of damages by a jury in a case of defamation, but, having weighed up all the factors to which I have referred, I am satisfied that the award in this case was disproportionately high and should be set aside.
The cross appeal
55. It was submitted on behalf of the plaintiff that the learned trial judge was wrong in not leaving the issue of punitive or exemplary damages to the jury.
56. It is undoubtedly the case that exemplary damages, to use the description now generally in use, may be awarded by a court in an action for defamation. Lord Devlin in his celebrated and much criticised speech in Rookes .v. Barnard [1964] AC 1129, had said that exemplary damages could only be awarded in three limited categories, a view of the law assented to by the other law lords, but not followed in other common law jurisdictions, including Ireland. (See Conway .v. Irish National Teachers Organisation and Others, [1991] ILRM 497.) It has been held in those jurisdictions that the courts are not confined to those three categories.
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57. One of the categories referred to in Lord Devlin’s speech was:-
“Those in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff”.
58. As was made clear by the House of Lords subsequently in Cassell and Co. .v. Broome , a plaintiff in an action for defamation who established that the defendant had published the words complained of because of a calculation that the profits resulting from the publication would exceed any damages he might have to pay would be entitled to exemplary damages since the case would come within this category. Since, as held by this court in Conway .v. Irish National Teachers Organisation , the jurisdiction of the court to award exemplary damages is not confined to the three categories referred to by Lord Devlin, it would follow that there may be other cases in which such damages could be awarded, e.g. where there was an intention to publish defamatory matter which was intended to refer to the plaintiff and which was known to be false. In the case of such a calculated breach of the constitutional right of the plaintiff to his good name, it might well be that, in the light of Conway .v.Irish National Teachers Organisation , a plaintiff would be entitled to exemplary damages. In the present case, there is nothing to indicate that the defendants published the offending article intending to defame the plaintiff and in the knowledge that it was untrue. I am satisfied that the trial judge was, accordingly, correct in her decision not to leave the issue of exemplary damages to the jury.
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Costs of earlier trial
59. The plaintiff also cross appealed against the refusal of the learned trial judge to award him the costs of an earlier abortive trial before O’Sullivan J. and a jury. On the second day of the trial, the trial judge recalled that he had advised one of the companies with which the plaintiff was associated some years before when he was at the Bar. He so informed the parties and counsel for the plaintiff indicated that they had no objection to the trial proceeding. However, the defendants indicated that they were not happy with the trial proceeding before O’Sullivan J. and he discharged the jury. At the conclusion of the trial before McGuinness J. and a jury, counsel for the plaintiff applied for the costs of the abortive trial. The learned trial judge declined to award the plaintiff those costs. I am satisfied that she was in error in so doing. The collapse of the first trial was not in any way the responsibility of the plaintiff and he was in no different position than if the jury had disagreed in that trial. I am, accordingly, satisfied that the defendants must pay the costs of the first abortive trial.
Conclusion
60. I would allow the appeal and order a new trial on the issue of damages only. I would dismiss the cross appeal, save in relation to the costs of the trial before O’Sullivan J. and a jury. I would vary the order of the High Court and order that the defendants pay the costs of the trial before O’Sullivan J. and a jury.
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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND
MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants
Judgment of The Hon. Mrs. Justice Denham delivered the 25th day of October, 2000.
1. Appeal
61. This is an appeal by Mirror Group Newspapers Limited, Piers Morgan, Neil Leslie and Karl Brophy, the defendants/appellants, hereinafter referred to as the defendants, from the order of the High Court made on 11th November, 1999 which assessed and awarded damages for libel payable to the plaintiff/respondent, hereinafter referred to as the plaintiff, at £250,000. Thus it is an appeal on quantum only.
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2. Jury determination on newspaper article
62. This case arose out of an article which appeared in the Irish Mirror on 10th June, 1998. The action was heard before a judge and jury. The jury determined that the article meant:
(a) That the plaintiff had paid £30,000 to Mr. Raphael Burke, then a member of the government, by way of a bribe;
(b) That the plaintiff paid the said money for the purpose of securing a licence for the radio station 98 FM;
(c) That the licence for the radio station 98 FM was awarded to the plaintiff and his company on foot of the said alleged payment to Mr. Burke;
(d) That the plaintiff secured a licence for the company ESAT Digifone in circumstances which give rise to a suspicion of bribery or corrupt practices;
(e) That the plaintiff had engaged in corrupt practices which warranted investigation by the Flood Tribunal.
63. The jury assessed damages for the plaintiff at £250,000 and judgment was entered for that amount and costs. From that assessment the defendants appealed.
3. Grounds of Appeal
64. The grounds of appeal of the defendants were:
(a) That the damages were excessive;
(b) That the correct test by which the Supreme Court should determine whether to interfere with the award of a jury in a defamation action is to assess whether the award was one which a reasonable jury could have thought necessary to compensate the respondent and to re-establish his reputation, and that by this test the damages were excessive;
(c) In the alternative, that the size of the award was one which no reasonable jury could have made in the circumstances of the case and was so unreasonable as to be disproportionate to the injury done to the reputation of the respondent and that the damages were excessive;
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(d) That the learned High Court Judge misdirected the jury on the issue of damages;
(e) That counsel ought to have been permitted to refer and that the judge ought to have referred, to the purchasing power of any award which the jury might be minded to make, and of the income that it would produce;
(f) That counsel ought to have been permitted to refer, and that the judge ought to have referred, by way of compensation to the conventional compensation scales and personal injury cases and to previous libel awards made or approved by the Supreme Court;
(g) That counsel ought to have been permitted to refer, and that the judge ought to have referred, to the level of award which they might respectively consider to be appropriate;
(h) That the supposed rule of law or practice restraining counsel and the judge in defamation trials from offering specific guidance as to the appropriate level of general damages is inconsistent with the provisions of the Constitution, and in particular Article 40.3 and/or Article 40.6.1(i) thereof and that accordingly it had not continued in force, as part of the law, by the provisions of Article 50 of the Constitution;
(i) That the limited scope of judicial control at the trial on the issue of damages was a violation of the legal and constitutional rights of the appellants;
(j) That the size of the award was a violation of the legal and constitutional rights of the appellants;
(k) That the verdict of the court constituted an interference with the right of the appellants to freedom of expression, to an extent greater than was necessary in a democratic society for the protection of the reputation of the respondent and was accordingly contrary to Article 10 of the European Convention of Human Rights and the law of Ireland.
4. Cross-Appeal
65. The plaintiff has cross-appealed seeking orders that the learned trial judge erred in refusing to allow the jury decide on the issues of aggravated or punitive or exemplary damages. Further, he has cross-appealed seeking an order for the costs of the previous trial.
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5. Defendants’ Submissions
66. The defendants acknowledged that many of the grounds raised in the Notice of Appeal were considered and rejected in a majority decision of the Supreme Court in De Rossa v. Independent Newspapers Plc. Supreme Court, 30th July 1999, unreported, hereinafter referred to as De Rossa . The defendants submitted that that decision was in part incorrect and ought to be revisited; that the award of £250,000 was made without adequate safeguards and that it constituted a breach of the defendants’ rights under Article 40.6.1 .i of the Constitution. Further, it was submitted that, while the European Convention on Human Rights is not part of domestic law, the rights protected by Article 10 of the European Convention are, for the most part, rights protected by Article 40.3.1 and 40.6.l.i of the Constitution. Also, that the limitations on exercise of those rights, the interest of the common good, correspond largely to the limitations expressly permitted by Article 10 of the Convention. Consequently, it was submitted, the starting point for a consideration of the appropriate balance between the quantum of damages for defamation and the right to freedom of expression is Tolstoy Miloslavsky v. U.K. [1995] 20 EHRR 442, hereinafter referred to as Tolstoy. The defendants submitted that the Supreme Court should reconsider its decision in De Rossa and they argued for a different conclusion in law. In the alternative or in addition, it was submitted that the award made by the jury was excessive. It was argued that the awards in De Rossa and this case are simply incompatible, unreconcilable and could not form part of any rational system of compensation as envisaged under the Constitution. To seek to reconcile such awards is to clothe the body of a series of random and arbitrary jury awards with the raiment of a rational scheme of compensation for libel.
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6. Plaintiff’s Submissions
67. The plaintiff submitted that the only real issue on the appeal is whether a reasonable jury could have awarded the sum of £250,000 to the plaintiff in the circumstances of the case. It was submitted that the size of the award in damages was in every way commensurate with the extreme seriousness of the particular libel and the major coverage which it was given. The libel went to the very essence of the plaintiffs worth both as an individual and as a businessman. It was submitted that the Irish law of libel represents a fair, logical and constitutional approach to the balancing of competing objectives, of the right of freedom of expression and of that of the individual citizen to his good name. In every respect the law is in accordance with Article 10 of the Convention of Human Rights and has not ever resulted in an award of damages of the size which has been suggested by the Court of Human Rights to represent an impermissible restriction on the right of freedom of expression. It was submitted that the libel in this case was of the highest category of prominence, seriousness and reckless irresponsibility having been published on no greater information that that contained in an anonymous letter and in face of unqualified denial by the plaintiff. It was submitted that whilst it is not in general a useful exercise to compare one libel with another this was one which had the capacity to create enormous damage on the plaintiff who was compensated no more than reasonably by the award of damages by the jury.
7. Following Precedent
68. Decisions of the Supreme Court are final: Article 34.4.6 of the Constitution of Ireland, 1937. The Supreme Court follows previous decisions of its court. This is a policy for the purpose of maintaining continuity and certainty in the law. However, there are exceptions to the rule. These were described in State (Quinn) v. Ryan [1965] IR 70 by
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Walsh J. at p. 127:
“That is not to say … that the court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule.”
69. The matter was further analysed in Attorney General v. Ryan’s Car Hire Ltd. [1965] IR 642. Kingsmill Moore J. stated at pp. 653-4:
“The law which we have taken over is based on the following of precedents and there can be no question of abandoning the principle of following precedent as the normal, indeed almost universal, procedure. To do so would be to introduce into our law an intolerable uncertainty. But where the Supreme Court is of the opinion that there is a compelling reason why it should not follow an earlier decision of its own, or of the courts of ultimate jurisdiction which preceded it, where it appears to be clearly wrong, is it to be bound to perpetuate the error?
In my opinion the rigid rule of stare decisis must in a Court of ultimate resort give place to a more elastic formula. Where such a Court is clearly of opinion that an earlier decision was erroneous it should be at liberty to refuse to follow it, at all events in exceptional cases.”
70. Thus, a previous decision of the Supreme Court may not be followed by the Supreme Court if it is determined that it was erroneous, if there is a compelling reason, or there are compelling reasons, not to follow the earlier decision. Precedent is followed save for exceptional cases. Thus, it is necessary to apply this test to the De Rossa case. It is necessary to determine if De Rossa should be followed or if exceptional circumstances exist so that the case should not be followed.
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8. Tolstoy
71. A fundamental plank of the De Rossa decision of the Supreme Court was the Tolstoy decision of the European Court of Human Rights. In the De Rossa judgment emphasis is laid on the Tolstoy judgment. The applicant in Tolstoy succeeded in his claim that the award of damages was contrary to Article 10. The Court held at paragraphs 46-51:
“C. Were the award and the injunction ‘necessary in a democratic society’?
1. The award.
46. The applicant and the Commission were of the view that the amount of damages awarded –1.5 million — was disproportionate to the legitimate aim of protecting Lord Aldington’s reputation or rights. The applicant pointed out that, at the relevant time, judicial control over the award of damages in defamation cases had been insufficient to ensure that such awards were proportionate.
47. The Government maintained that there was a reasonable relationship of proportionality between the amount of the award and the aim of compensating the damage done to Lord Aldington and restoring his reputation. They pointed out that Article 10 imposed ‘duties and responsibilities’. The applicant’s pamphlet had been false and unfair and had been expressly designed to provoke a libel action. Although no reasons had been given by the jury, it was, as noted by the Court of Appeal, obvious that the jury awarded so large a sum by way of damages because of the enormity of the libel. The Court of Appeal had been satisfied that the award of £1.5 million had been a rational response by the jury to the exceptional circumstances of the libel which they were considering. Otherwise, as amply demonstrated by its ruling in Sutcliffe v. Pressdram Ltd. the Court of Appeal would have been able to set the award aside and order a new trial.
The Government further submitted that in the Court of Appeal’s opinion the jury had received a very full direction from the trial judge. Moreover, as explained by the judge to the jury, it would have been inappropriate and unhelpful to the jury for him to refer to other cases, because the facts and circumstances were so different, or refer to specific sums of money, since the quantum of damages was exclusively a matter for the jury.
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In addition, before the High Court both counsel for the applicant and the applicant himself had acknowledged that if Lord Aldington won his appeal action, he must receive a very substantial sum. In the Court of Appeal the applicant had been unconcerned about the size of the damages award and he had earlier declined Lord Aldington’s offer to accept £300,000. The offer remained open and the applicant could at any time reduce his liability by £1.2 million if he really wished to do so.
48. The Court recalls at the outset that its review is confined to the award as it was assessed by the jury, in the circumstances of judicial control existing at the time, and does not extend to the jury’s finding of libel. It follows that its assessment of the facts is even more circumscribed than would have been the case had the complaint also concerned the latter.
In this connection, it should also be observed that perceptions as to what would be an appropriate response by society to speech which does not or is not claimed to enjoy the protection of Article 10 of the Convention may differ greatly from one Contracting State to another. The competent national authorities are better placed than the European Court to assess the matter and should therefore enjoy a wide margin of appreciation in this respect.
49. On the other hand, the fact that the applicant declined to accept Lord Aldington’s offer to settle for a lesser sum does not diminish the United Kingdom’s responsibility under the Convention in respect of the contested damages award.
However, the Court takes note of the fact that the applicant himself and his counsel accepted that if the jury were to find libel, it would have to made a very substantial award of damages. While this is an important element to be borne in mind it does not mean that the jury was free to make any award it saw fit since, under the Convention, an award of damages for defamation must bear a reasonable relationship of proportionality to the injury to reputation suffered.
The jury had been directed not to punish the applicant but only to award an amount that would compensate the non-pecuniary damage to Lord Aldington. The sum awarded was three times the size of the highest level award previously made in England and no comparable award has been made since. An award of the present size must be particularly open to question where the substantial national law applicable at the time fails itself to provide a requirement of proportionality.
50. In this regard it should be noted that, at the material time, the national law allowed a great latitude to the jury. The Court of Appeal could not set aside an award simply on the grounds that it was excessive but only if the award was so unreasonable that it could not have been
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made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. In a more recent case Rantzen v, Mirror Group Newspapers Ltd . the Court of Appeal itself observed that to grant an almost limitless discretion to a jury failed to provide a satisfactory measurement for deciding what was ‘necessary in a democratic society’ for the purposes of Article 10 of the Convention. It noted that the common law – if properly understood – required the courts to subject large awards of damages to a more searching scrutiny than had been customary. As to what guidance the judge could give to the jury, the Court of Appeal stated that it was to be hoped that in the course of time a series of decisions of the Court of Appeal, taken under section 8 of the Courts and Legal Services Act, 1990, would establish some standards as to what would be ‘proper’ awards. In the meantime the jury should be invited to consider the purchasing power of any award which they might make and to ensure that any award they made was proportionate to the damage which the plaintiff had suffered and was a sum which it was necessary to award him to provide adequate compensation and to re-establish his reputation.
The Court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant’s case did not offer adequate and effective safeguards against a disproportionately large award.
51. Accordingly, having regard to the size of the award in the applicant’s case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. the Court finds that there has been a violation of the applicant’s rights under Article 10 of the Convention.
For these reasons THE COURT
1. Holds unanimously that the award was ‘prescribed by law’ within the meaning of Article 10 of the Convention.
2.. Holds unanimously that the award, having regard to its size taken in conjunction with the state of national law at the relevant time was not ‘necessary in a democratic society’ and thus constituted a violation of the applicant’s rights under Article 10.”
[emphasis added]
72. Thus, the court held that the award of damages was a breach of Article 10 of the European Convention on Human Rights. This decision was based on the size of the
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award and the lack of adequate and effective safeguards against disproportionality in the national law, that is the law of England and Wales, at the time.
9. Rantzen and John
73. At the relevant time in England and Wales the decision of Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 , hereinafter referred to as Rantzen had not been handed down. Nor had that of John v. M.G.N. Ltd. [1996] 2 All ER 35 , hereinafter referred to as John.
10. De Rossa
An issue in De Rossa was whether the court should give further guidelines to the jury as to the assessment of damages. This was decided in the negative. Hamilton C.J., referring to the Tolstoy decision, held:
“It is clear from the foregoing that the primary reason for the Court’s decision was the size of the award and the lack of adequate and effective safeguards at the relevant time against a disproportionately large award. It recognised, however, that an award of damages must bear a reasonable relationship of proportionality to the injury to reputation suffered.”
74. He referred to the fact that the European Court had given approval to the guidance to be given to a jury as laid down by the Court of Appeal in Rantzen v. Mirror Group Newspapers (1986) Limited and Ors. [1993] 4 All ER 975 and as extended in John v. M.G.N. Ltd. [1996] 2 All ER 35. Of the changes introduced by these cases, he held at p.44:
“While the aforesaid changes of practice were therein described as ‘modest’ they are not only important but fundamental and radically altered the general practice with regard to the instructions or guidance to be given to a jury as to the manner in which they should approach the assessment of damages in a defamation action.”
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75. On the issue of guidelines on the award of damages to the jury he referred at p.47 to the concepts of balancing and proportionality required:
“The law must consequently reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name ( Hynes – O’Sullivan v. O’Driscoll [1988] IR 436 [1989] ILRM 349). This introduces the concept of proportionality which is recognised in our constitutional jurisprudence.”
76. Hamilton C.J. pointed out that the only remedy to a person whose good name had been damaged was an action for damages, reference was made to Barrett v. Independent Newspapers Ltd. [1986] IR 13, pp. 23 and 24. It was held that neither the Constitution nor the European Convention requires that guidelines be introduced, that the guidelines introduced in England and Wales were a development of common law. Hamilton C.J. held:
“If the practice as outlined in Rantzen’s case and extended as outlined in John’s case were to be followed, the jury would be buried in figures, figures suggested by counsel for both parties as to the appropriate level of damages, a figure from the judge representing his opinion as to the appropriate level of damages, figures with regard to damages made or approved by the Court of Appeal in previous libel actions and figures with regard to damages in personal injuries actions and at the same time be subject to the direction of the trial judge that it is not bound by such figures and must make up its own mind as to the appropriate level of damages….
It is accepted by all that, even if the giving of such guidelines and figures were permissible, the jury would not be bound by such figures and was under an obligation to make up its own mind as to the appropriate level of damages.
I am satisfied that the giving of such figures, even though only by way of guideline, would constitute an unjustifiable invasion of the province or domain of the jury.”
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77. In a dissenting judgment I expressed the view that juries should be given further guidelines, including information, for example, on previous libel awards confirmed or determined by the Supreme Court, on the level of damages in personal injury cases and on the level of award deemed appropriate by parties. This would aid a jury in arriving at a reasonable and proportionate decision on the assessment of damages. Guidelines would inform the jury. Further, guidelines would be a protection against disproportionate awards.
11. Compelling Reasons
78. The decision of the majority in De Rossa sets out the law. The defendants have asked the court not to follow the De Rossa decision. The first query is as to whether the decision was erroneous. As is clear from my dissenting judgment in De Rossa I held a view contrary to the majority of the court. However, that of itself is not sufficient to determine that De Rossa should not be followed. To disagree with a decision is not sufficient to invoke the exception to the policy of the court to follow precedent. It is necessary also to determine if there exists a compelling reason not to follow De Rossa .
79. The matters at issue are important in a democracy. The right to communicate, the right to information and the right to freedom of expression, guaranteed by Article 40.3.1 and 40.6.1(i) of the Constitution of Ireland, are similar to the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The rights guaranteed in the Irish Constitution are not absolute, neither are the rights of the European Convention. Both documents require that a balance be achieved and that balance going to matters of reputation, information, communication and the freedom of expression is a matter of importance in a democracy and is of public interest.
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80. The facts of this case raise different circumstances. While once again in this case a balance is sought to be achieved between the plaintiffs right to his good name, as protected in the law of defamation, and the right of freedom of expression, the circumstances are not the same. The issue is quantum. However, quantum can not be considered in a vacuum. The facts of the case are relevant. The facts of this case raise a different scenario.
81. There should be a rational relationship between schemes of awarding damages. To have payments for damage to reputation grossly in excess of payments for serious personal injury raises for consideration the rationale of both schemes for awarding damages. Indeed, if the amount awarded in damages in defamation cases exceeds greatly the amounts awarded in general damages for severe personal injuries it has the appearance of punitive damages. This fundamental issue – the rationale for the level of awards of damages – is important.
82. In the kernel of the De Rossa decision is an analysis of the European Convention and decisions referred thereto. The European Convention for the Protection of Human Rights and Fundamental Freedoms is not part of the domestic law of Ireland: In Re O’Laighléis [1960] IR 93. However, decisions of the European Court of Human Rights on the said European Convention may be persuasive authority in the analysis of similar constitutional rights, in the same way as decisions of other constitutional courts: Norris v. Attorney General [1984] IR 36, Henchy J. at p.69. It was determined in De Rossa that the existing practice in Ireland were not contrary to the Convention. The defendants submit that the decision was partially in error. The nub of the defendants’ submission is that the Irish practice rule violates Article 10 of the Convention. In light of the current practice whereby decisions of the European Court of Human Rights may have persuasive authority on issues where the Convention and Constitution are similar, in light of the fact that Ireland was one of
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the original states which ratified the Convention (with consequent effect on policy), and in light of the declared intention of the Irish Government to incorporate the Convention into the domestic law of Ireland, the law of the Convention has a persuasive relevance. Consequently, a cogent argument that there was error in part in its interpretation is significant and a compelling reason to reconsider the issue.
83. The defendants submitted that there should be a departure from the previous decision of the Supreme Court in De Rossa . It was argued that while in the De Rossa case there was reference to Rantzen that the court had not directed its mind to the relevant and necessary portion of Tolstoy especially the above quoted paragraphs 46-51. It was submitted that the court, while it adverted to Tolstoy, did not direct its mind to the essential elements of Tolstoy. In analysing Tolstoy it appears that the earlier common law of England and Wales was considered to be contrary to the European Convention. It appears to me that there is considerable similarity to Irish law now and the law of England and Wales prior to the decisions in Rantzen and John. Consequently there is a real issue as to whether the scope of judicial control at the trial and on appeal offers adequate and effective safeguards against disproportionately large awards of damages. It thus raises the issue as to whether there is a breach of the Convention. In all the circumstances it is appropriate that the matter be reopened, reanalysed and reassessed.
84. At the core of the issues in this case is a decision of a jury. A modern jury brings its own common knowledge to the decisions. It decides whether the statement is a libel. That is not in contest on this appeal. That is the most important decision of the jury -as to whether it is a libel or not – and that decision is solely for the jury. The jury decided also on the amount of damages. At issue is whether on this latter decision further information and guidance should be given to the jury. As with other aspects of juries, their decisions
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should be reviewed in a modern context. I am satisfied that it is wholly appropriate that the issue of information and guidelines to juries be reconsidered. This has implications more far reaching than trials on defamation. I am satisfied that this too is a compelling reason to reconsider the De Rossa decision.
85. The discretion of the jury is not limitless. There is the requirement of proportionality in this jurisdiction but it is not assisted by specific guidelines on the assessment of damages. The issue of damages, and rules related thereto, is a matter which may be addressed by the Oireachtas. In the absence of such legislation the court may use its common law jurisprudence to assist the jury and the trial.
86. In conclusion, I am satisfied that there are compelling reasons to reconsider the De Rossa decision. These reasons include: (a) the cogent arguments made by the defendants as to the interpretation and effect of the Tolstoy decision, the analysis in De Rossa the fact that the issue is one of importance in a democracy and is of public interest; (b) the issue of quantum cannot be considered in a vacuumand the facts of this case inform the analysis; (c) there should be a rational relationship between schemes of awarding damages which should be analysed in the context of the award; (d) the issue of principles and guidelines to juries, in the context of complex modern litigation; are all compelling reasons which taken together are sufficient to raise the exception to the precedent rule. For all these reasons I am satisfied that there are compelling reasons to reconsider De Rossa . Such a review after a relatively short time is not barred in the presence of compelling reasons to review the decision.
12. Persuasive Authority
87. There is no necessity to tie analysis to decisions of the Court of Appeal of England and Wales. Persuasive authority may be considered from our constitutional
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viewpoint and from other common law constitutional courts, some of which I referred to in De Rossa as well as decisions of the European Court of Human Rights on the European Convention of Human Rights. Thus, quite apart from Rantzen and John consideration may be given to cases from other common law jurisdictions. For example, in Carson v. John Fairfax (1992-93) 178 C.L.R. 44 Kirby P.’s ruling in the Court of Appeal that on comparison with serious personal injury cases the amount of damages given was excessive and smacked of the punitive was upheld by the High Court. In other words levels of awards in personal injury cases were held to be relevant.
13. Decision on Guidelines
88. As to the substantive issue, 1 remain of the view I expressed in De Rossa . I am satisfied that guidelines to a jury on the assessment of damages are appropriate. At the least, reference could be made to the level of damages in previous libel cases decided by the Supreme Court and to the level of awards in serious personal injury cases, as has been introduced in other common law countries. Such judicial guidelines may be a safeguard against a disproportionate award. In the absence of such guidelines, merely to require the award to be proportionate is an inadequate protection against a disproportionate award.
14. Was it an Excessive Award ?
89. In light of the decision of the majority of this court that it will not depart from the decision in De Rossa and consequently that De Rossa states the law, the next issue is whether the jury’s assessment of damages should be set aside as being excessive. In McDonagh v. News Group Newspapers Limited Supreme Court, 23rd November, 1993, unreported, Finlay C.J. said of an award of £90,000:
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“… it seems to me that though the figure is probably at the top of the appropriate range it is not so great that this court should interfere with it on appeal.”
90. This was a most serious libel, of a barrister, as stated by Finlay C.J.:
“Having come to the conclusion that I must reject the Defendant’s appeal against the answer by the jury to Question 2(d), namely the question as to whether the words were meant and were understood to mean that the Plaintiff was a sympathiser with terrorist causes, I am satisfied that there are not very many general classifications of defamatory accusation which at present in Ireland, in the minds of right-minded people, would be considered significantly more serious. To an extent the seriousness may be somewhat aggravated by the fact that it is an accusation which has been made against a person who has a role, by reason of his profession and by reason of his standing as a member of the Bar, in the administration of justice. With regard to the other meanings which have been accepted by the jury as flowing from the accusations made, they basically constitute in their combined effect an extremely grave accusation of professional misconduct by the Plaintiff. The essence of the function of a lawyer and a member of the Bar is carrying out a task such as that which was assigned by the State to the Plaintiff on this occasion of the inquest, was that he would be rigidly and uncompromisingly honest and independent in his assessment of the proceedings of which he was an observer and that the State could rely completely, as his client, upon what a lawyer must in his ethical code deliver, namely, an honest appraisal of the situation before him, both as a matter of law and as a matter of fact.
The combined accusations made against the Plaintiff are that he failed or was likely to fail completely to do that, and that instead as a piece of major professional misconduct he abused the function which had been entrusted to him by his client.
A statement which makes that accusation and in addition makes the accusation of sympathy with terrorist causes would be extraordinarily damaging to any person, irrespective of their calling or profession. I, as I have indicated, take the view that the assessment of damages made by this jury, though undoubtedly high and at the top of the permissible range, is not beyond that range in the sense that it is so incorrect in principle that having regard to the general approach of an appellate court to damages assessed by a jury for defamation it should be set aside.”
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In the De Rossa case I was of the view that £300,000 was excessive. McDonagh, de Rossa and this case have a similar factor – the applicant has a standing in the community as, respectively, a barrister, a politician and a businessman. All three cases involved very serious defamations.
The McDonagh award was held to be at the top of the permissible range. In De Rossa there were aggravating factors to be considered. Even allowing for the circumstances of this case, it is an award which in my view is beyond the range in that it is so incorrect in principle, it is so disproportionate, that it should be set aside. I leave for another case the matter as to whether it would be open to this court to substitute an award of damages. This is an important issue, especially when awards are held to be excessive and yet no guidelines, as submitted for, are given to the jury.
15. Aggravated, Exemplary and Punitive Damages
91. On the issues of aggravated, exemplary or punitive damages I agree with the Chief Justice. I would not allow the cross-appeal. The trial judge did not err in refusing to leave these matters to the jury.
16. Costs of Previous Trial
92. Costs follow the event. Consequently, if the respondent succeeds he is entitled to costs, including the costs of the first trial.
17. Conclusion
93. I am satisfied that the instructions to the jury on quantum should be altered so as to give a greater degree of guidance and assistance to the jury. Also, that there should be a
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more searching scrutiny, which would include consideration of such guidelines, on appeal to the Supreme Court to ensure that there is maintained the appropriate balance between the rights of the individual and of freedom of expression in a democratic society.
18. Orders
94. I would allow the appeal, determine that there are compelling reasons to reconsider the De Rossa decision, consider guidelines for the jury as to the assessment of damages, determine that the award was disproportionate and excessive and should be set aside, and reserve for another occasion the issue as to whether the Supreme Court could substitute an award of damages on appeal. On the matters raised in the cross-appeal I would dismiss the cross-appeal, except in relation to the costs of the first trial.
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THE SUPREME COURT
KEANE C.J.
DENHAM J.
MURPHY J.
GEOGHEGAN J.
O’HIGGINS J.
289/99
BETWEEN:
DENIS O’BRIEN
Plaintiff/Respondent
AND
MIRROR GROUP NEWSPAPERS LIMITED, PIERS MORGAN, NEIL LESLIE AND KARL BROPHY
Defendants/Appellants
JUDGMENT delivered the 25th day of October 2000 by Mr Justice Geoghegan
95. The Chief Justice in his judgment has set out in considerable detail both the background facts relating to this case and its procedural history. I adopt his account of these matters and therefore any repetition would be superfluous.
96. In a recent decision of this Court in De Rossa v Independent Newspapers Plc Supreme Court 30th July 1999, unreported, the Court in the form of a judgment per Hamilton C.J. with whom three other members of the Court agreed restated the traditional principles long followed by trial judges in libel actions as to how such a judge should address the jury in relation to the assessment of damages. Specifically the Court disapproved of the decision of the English Court of Appeal in John v MGN Limited [1996] 2 All E.R. 365 that thenceforth guidance should be given by the trial judge to the jury on the assessment of damages in the form of comparison with precedent awards in both personal injury and libel cases and to the purchasing power of a particular award and to the level of awards suggested
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by counsel and the judge himself or herself. In a minority judgment in De Rossa Denham J. expressed the view that such guidance should be given.
97. It has been argued in this appeal on behalf of the Appellant that De Rossa should be reconsidered and that on various grounds as set out in the Chief Justice’s judgment this Court should now depart from it. The Chief Justice has dealt with the submission at some length in his judgment and has formed the view that this Court should not now entertain arguments to the effect that De Rossa was wrongly decided. I am in complete agreement both with the conclusion of the Chief Justice in this regard and his reasons for arriving at such conclusion. There is nothing more which I can usefully add.
98. I therefore now turn to the question of whether the award should be set aside as being disproportionately high. I will start by making a simple comment. In my view this was an extremely serious libel. It is important to consider the context in which the offending article came to be written. First of all the Moriarty and Flood Tribunals were hitting the headlines. Payments to politicians were being investigated. It would be a gross understatement to say that in the mind of the public there was a sniff of corruption in the air. Indeed as McGuinness J. pointed out when conducting the trial and in reference to some discussion about a particular question that was being asked, even payments by companies to political parties were at that stage becoming tainted with corruption in the minds of the public. But the public for the most part would have no knowledge as to the character of Mr Denis O’Brien the Plaintiff/Respondent in this case. Yet at the same time he was well known as a new emerging and major figure in the business world having regard in particular to the considerable controversy surrounding the granting to companies promoted by the Plaintiff of relevant land line and mobile telephone licences placing him through his companies as effectively the only competition to the then Telecom Eireann. These licences were granted by the then Minister
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99. Mr Lowry although there were much larger international companies which had applied for the licences. No matter how many enquiries or investigations there may have been into the granting of these licences and upholding their propriety the Plaintiff who was a relatively “unknown quantity” in the eyes of the public was clearly vulnerable to attacks on his character.
100. Secondly the offending article was published at a stage when the Plaintiff was in the United States of America making exhaustive efforts with different financial institutions to raise the funds necessary for the appropriate investment in the telephonic enterprise. The Plaintiff explained in evidence (which I must assume was accepted by the jury) that he was extremely upset at hearing from Dublin about the questions he was being asked and the obvious intention to write an article and that this upset particularly related to the business sensitivity involved at that time when he was trying to raise money. It is true of course that the evidence established that his business was progressing successfully. But at Question 233 counsel for the Defendants/Appellants suggested to the Plaintiff “quite specifically” that the article had had no effect whatsoever on the growth of his projects and the expansion of his business. The Plaintiffs answer was as follows:
“You are incorrect in that assumption. I would never have had to go to the length of coming to the High Court in Dublin unless I felt that this was absolutely wrong.”
101. It was suggested to the Plaintiff that the Irish Mirror did not have a large circulation and that at any rate the type of person that he would be dealing with in business etc. would not be a reader of that paper. I do not find this argument very convincing though I do accept of course that circulation is a factor which may be relevant in the assessment of damages in a libel action. But as Mr Cooney pointed out in cross-examination and with which I agree the
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contents of a newspaper article may become known to large numbers of people beyond the actual buyers and readers of that paper. In modern times it is common practice for all the different newspapers to be on display usually on a low shelf in a shop. A person who has no intention whatsoever of buying the Irish Mirror may nevertheless look at the main front page headlines. Given the widespread public interest in the Tribunals and the allegations against Mr Ray Burke etc. a front page column that is headed by a photograph of Mr Burke with the words “donation: Ray Burke” written underneath and then a headline in bold type “Burke in new £30, 000 probe” was bound to attract the eye of many customers in shops buying newspapers but who had no intention of buying the Irish Mirror.Furthermore underneath the headline was the word “exclusive” picked out in red.
102. It is true that only part of the article is contained in that front page but if the natural temptation of the browser to say nothing of the buyer of the paper to turn to page 3 was succumbed to it is clear that there were references not merely to the radio licence but to what to my mind was a much more serious matter, the Esat Digifone competition. One of the questions which had been put to the jury by the trial judge was the following:
“In its natural and ordinary meaning or by way of innuendo does the article mean that the Plaintiff secured a licence for the company Esat Digifone in circumstances which gave rise to a suspicion of bribery or corrupt practices?”
103. The jury answered that question as it did to the other four in the affirmative. It is important at this stage again to recall that at the time the article was published the Plaintiff was engaged in the difficult round of negotiations with financial institutions with the crucial aim of raising the necessary investment. I suspect the jury took the view that such an allegation coming at
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such a time and in such sensitive circumstances was of the utmost seriousness and should attract high damages.
104. I have already referred in part to the wider circulation that such an article would have than merely the sales or readership figures of the Irish Mirror might suggest. The Plaintiff himself laid emphasis on the damage to his reputation among his workforce. But there is a still more important factor to which quite clearly from the transcript the Plaintiff attached very considerable significance. As he explained, if you are a “player” in the business or financial world and are trying to attract international investment what is said about you or your companies on the Internet obviously assumes considerable importance. He gave evidence to the effect that there were agencies which gathered newspaper clippings about business enterprises all round the world and that these can very easily find their way into the Internet so that they are read by any person looking into or investigating the enterprise concerned. Counsel for the Defendant/Appellant Mr MacMenamin put it to the Plaintiff that the article was “not even on the Internet” . The Plaintiff was unable specifically to answer the question but he pointed out that there are different data bases for different articles. The trial judge McGuinness J. intervened to ask Mr MacMenamin whether when Mr MacMenamin was suggesting that it was not on the Internet did he simply mean that it was not on the Mirror website. Mr MacMenamin confirmed that that was what he was suggesting namely that it was not on the Mirror website. The Plaintiff when he heard that went on to explain that he did not think the business community looked at the Daily Mirror but that there were newspaper clipping services that go through every newspaper and every article produced all over the world so that when a potential investor goes and looks up the word “Esat” as he put it “the Daily Mirror, the Guardian, the Irish Times, the New York Times all come together.”
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105. Finally towards the end of the cross-examination of the Plaintiff Mr MacMenamin put to him that so far as the level of investment and borrowings are concerned in his various enterprises, that continues unimpeded. The Plaintiff agreed with that. He was then asked whether he had no abnormal anxieties on that score. He answered that he had many anxieties but he was again asked whether he had any abnormal anxieties and his answer to that was as follows:-
“Well, I have an abnormal anxiety as to what people think of an article like this, because it is still an unanswered question.”
106. Given the context in which the libels were published and the contents of the libels the question arises is the award so high that it ought to be set aside? Various formulations of words have been used by appellate Courts in Ireland and England as to when an appellate Court in a libel action can interfere with a jury award. Although the language is sharper and stronger in some cases than in others I am not sure that there was ever any intended difference and I am inclined to think that the form of words adopted by Henchy J. in Barrett v Independent Newspapers Limited [1986] IR 13 is the most helpful. The learned judge stated as follows:
“Yet, a fundamental principle of the law of compensatory damages is that the award must always be reasonable and fair and bear a due correspondence with the injury suffered. In my view, the sum awarded in this case went far beyond what a reasonable jury applying the law to all the relevant considerations could reasonably have awarded. It is so disproportionately high that in my view it should not be allowed to stand.”
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107. One point of interest about this statement of principle is that it is not confined to damages for libel. It is intended as a principle to apply to compensatory damages in all cases. This might at first sight seem difficult to reconcile with the many judicial dicta to the effect that appellate courts will be extraordinarily reluctant to interfere with jury awards in libel actions. Indeed in the Barrett case Finlay C.J. said the following:
“With regard to the appeal against the amount of the damages, certain principles of law are applicable. Firstly, while the assessment by a jury of damages for defamation is not sacrosanct, in the sense that it can never be disturbed upon appeal, it certainly has a very unusual and emphatic sanctity in that the decisions clearly establish that appellate courts have been extremely slow to interfere with such assessments, on the basis of excess or inadequacy.”
108. There is no dissent from this view in the judgment of Henchy J. and I doubt very much that the two judges were intending to say anything different. The true principle would seem to be that in all cases of compensatory damages whether in libel or in personal injuries or otherwise an appeal court will not interfere merely because its own judges thought the award too high. The court will only interfere if the award is so high that it is above any figure which a reasonable jury might have thought fit to award. But although that principle is the same in all cases of compensatory damages, the application of the principle will necessarily be different in the case of libel from the case of personal injuries. In the case of personal injuries an appeal court can determine with some confidence what would be the range of awards which a reasonable jury (or nowadays a reasonable judge) might make. This the appeal court can do because although every personal injury case is different from every other personal injury case there are also great similarities. A broken hip case relates to some
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extent at least to every other broken hip case. A loss of an eye case relates to some extent at least to every other case of loss of an eye etc. Members of the court from their experience at the Bar and experience as trial judges and indeed experience of previous similar appeals may with some confidence form a view as to what the legitimate spectrum of awards could be. In the case of a libel appeal however the appeal Court although it has to engage in the same exercise, it can only do so with diffidence rather than confidence. In this connection it is worth quoting again the passage from the speech of Lord Hailsham of St. Marylebone, L.C. in Cassell and Co Ltd v Broome [1972] AC 1027 already cited by the Chief Justice:
“What is awarded is…. a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being ‘at large’.”
109. It is I think relevant also to cite the passage from the same speech referred to in the written submissions of Counsel for the Plaintiff and Respondent:
“It may very well be that, on the whole, judges and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges.”
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110. Unlike personal injury cases every libel action is completely different from every other libel action and therefore the guidelines available to an appeal court in settling the reasonable parameters of an award are much more limited.
111. As the Chief Justice has pointed out, one such guideline may well be previous awards approved of by the Supreme Court. But I think that there are problems about over reliance on that criterion. One of the arguments of Hamilton C.J. in his judgment in the De Rossa case against a practice of counsel and the trial judge analysing other comparative libel actions when comparing the awards in them was the sheer practical difficulty of comparison. Before one begins to consider De Rossa or any other comparison it is important in my view that the Supreme Court should thoroughly consider the case before it in isolation of comparisons. If for instance the De Rossa case had never occurred, the mind set of this Court might be very different in viewing the claim of the Plaintiff Mr O’Brien. I have already given reasons why in my view the libels in the offending article were extremely serious from the point of view of the Plaintiff I have little doubt that if it was not for De Rossa , I would have no hesitation about leaving the jury award stand even though it is more than I personally would have awarded. But having regard to the diffidence with which an appeal court should approach the possible setting aside of a jury award in a libel action, I could not have formed the view that the jury award was beyond reason. In addition to the points which I have already made I think it relevant also to observe that no apology was made at any stage and that the jury may well have taken the view and could legitimately have taken the view that the article was very carefully crafted both to hint at wrongdoing on the part of the Plaintiff and thereby titillate the public while at the same time engage in a damage limitation exercise with a view to avoiding libel. If the newspaper did adopt this exercise it was unsuccessful but it would have been
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open to the jury to take the view that they had done so. The award had to be of a level that the Plaintiff would feel reasonably compensated.
112. Interestingly in the course of the opening of the case by Mr Cooney Counsel for the Plaintiff, he referred to the fact that the readership of the Irish Mirror in June 1998 varied between 180,000 and 195,000 people. Exception was taken by Mr MacMenamin Counsel for the Defendants to these actual figures being given to the jury because as he put it “in my respectful submission, that is an attempt by the back door to place numbers into the minds of the jury as regards a level of damages, and I take great exception to that.” Mr Cooney in response commented as follows:
“I understand his apprehension. I think effectively what Mr MacMenamin is afraid of is that the jury would come back and award somewhere between £180,000 and £195, 000. That is a danger which may be there. It may be removed by what Mr MacMenamin would say to the jury in his closing and more particularly, what you would say was in order that is that the level of damages is a matter for the jury.”
113. It would be unfair to draw any inference from this little bit of unusual dialogue that Mr Cooney was conceding that figures in that order were excessive but even if such an inference could be drawn it would be irrelevant. For the very same reason that it is difficult for an appeal court to arrive at a correct level of damages for libel it is almost impossible for counsel for the Plaintiff to make any worthwhile prediction.
114. As I have already indicated, I have come to the conclusion that if I do not have to consider De Rossa I would not concur with this Court interfering with the award. However De Rossa undoubtedly presents problems. As the Chief Justice has pointed out, the £300,000 awarded in that case was the highest in this jurisdiction to be approved by the Supreme Court.
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115. He has also summarised in his judgment the extremely serious allegations which were made against the prominent politician Mr Proinsias De Rossa. The Chief Justice has clearly taken the viewthat the defamation in this case was much less serious and that the discrepancy is so great that if £300,000 was considered by the Supreme Court to be about the most that could have been allowed in De Rossa £250,000 cannot be allowed for Mr O’Brien.
116. I take a somewhat different view. It would seem to me that the two cases are so completely different that worthwhile comparisons are not achievable. It is impossible to know what were the aspects of each individual case to which the respective juries attached importance. I think that in comparing the two cases (if such comparison is relevant at all) one must take serious account of the fact that the allegations in the De Rossa case were essentially all past history. On the other hand the allegations in Mr O’Brien’s case related to his more or less current behaviour. Secondly Mr De Rossa was extremely well known to the public and even in the eyes of his political opponents he had a fine reputation as a parliamentarian. In one sense given his publicly established good reputation it could be argued that it was all the more serious that that should be dented by allegations relating to an alleged criminal and murky past. On the other hand it could also be argued that while the damage was serious and would have to be compensated on a serious basis there would be no substantial danger of permanent injury to his reputation it being so public and well established. Mr O’Brien by contrast was not well known to the public and yet was sufficiently well known as somebody involved in controversy. There would have been no knowledge at all virtually as to his good or bad character and he was at the time of the libels in the process of raising funds for the most important business venture that he had been engaged in. The innuendoes against his good character were liable to be published across the Internet. As a major new entrepreneur on the Irish scene his reputation in the eyes of both the business world and the public in
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general was of the utmost importance to him. I have come to the conclusion that the view I have taken independently of De Rossa ought not to be affected by De Rossa. Still less should it be affected by the award of £90,000 made to the barrister Mr Donagh McDonagh in McDonagh v Newsgroup Newspapers Limited Supreme Court 23rd November, 1993, unreported. Mr McDonagh did not have the public profile of Mr O’Brien and at any rate the award was made seven years ago. I think that when put in the context of the surrounding circumstances the libels in this case were far more serious than in the McDonagh case and I am particularly referring to the libel in relation to corrupt practices in obtaining the Esat Digifone licence. Comparisons in the area of libel are dangerous but if the De Rossa and the McDonagh case are to be referred to I agree with the view of counsel for the Plaintiff and Respondent in their written submissions that the judgment of Campbell-Sharpe v Independent Newspapers (Ireland) Supreme Court, 11th of February, 1998, unreported, should also be taken into account. As counsel points out for a libel to the effect that she had not paid a member of her staff but albeit one which the evidence indicated caused her great upset and for which there was no apology the jury awarded £70,000 and this award was upheld in a trenchant ex-tempore ruling by Hamilton C.J. with which Barrington J. and Lynch J. agreed. It is unfortunate that the transcript of the ex-tempore ruling remains unapproved and it would therefore not be appropriate to cite passages from it but it is quite clear that the three members of the Court unanimously considered that the award made by the jury was fair and reasonable having regard to the circumstances and was not excessive particularly having regard to the absence of an apology.
117. In all the circumstances therefore I would dismiss the appeal.
118. In relation to the cross-appeals I agree with the judgment of the Chief Justice that the cross-appeal in respect of the issue of punitive or exemplary damages should be dismissed for
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the reasons which he gives and I also agree that the cross-appeal relating to the refusal of the learned trial judge to award the Plaintiff the costs of an earlier abortive trial before O’Sullivan J. and a jury ought to be allowed.
© 2000 Irish Supreme Court
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Google Spain SL, v Agencia Espanola de Proteccion de Datos (AEPD) Mario Costeja Gonzalez
[2013] EUECJ C-131/12 [2013] EUECJ C-131/12, [2014] WLR(D) 202
I – Introduction
1. In 1890, in their seminal Harvard Law Review article ‘The Right to Privacy’, (2) Samuel D. Warren and Louis D. Brandeis lamented that ‘[r]ecent inventions and business methods’ such as ‘[i]nstantenous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life’. In the same article they referred ‘to the next step which must be taken for the protection of the person.’
2. Nowadays, protecting personal data and privacy of individuals has become increasingly important. Any content including personal data, be it in the form of texts or audiovisual materials, can instantly and permanently be made accessible in digital format world wide. The internet has revolutionised our lives by removing technical and institutional barriers to dissemination and reception of information, and has created a platform for various information society services. These benefit consumers, undertakings and society at large. This has given rise to unprecedented circumstances in which a balance has to be struck between various fundamental rights, such as freedom of expression, freedom of information and freedom to conduct a business, on one hand, and protection of personal data and the privacy of individuals, on the other.
3. In the context of the internet, three situations should be distinguished that relate to personal data. The first is the publishing of elements of personal data on any web page on the internet (3) (the ‘source web page’). (4) The second is the case where an internet search engine provides search results that direct the internet user to the source web page. The third, more invisible operation occurs when an internet user performs a search using an internet search engine, and some of his personal data, such as the IP address from which the search is made, are automatically transferred to the internet search engine service provider. (5)
4. As regards the first situation, the Court has already held in Lindqvist that Directive 95/46/EC (6) (hereinafter ‘the Data Protection Directive’ or ‘the Directive’) applies to this situation. The third situation is not at issue in the present proceedings, and there are ongoing administrative procedures initiated by national data protection authorities to clarify the scope of application of the EU data protection rules to the users of internet search engines. (7)
5. The order for reference in this case relates to the second situation. It has been made by the Audiencia Nacional (the National High Court of Spain) in the course of proceedings between Google Spain SL and Google Inc. (individually or jointly ‘Google’) on the one side and the Agencia Española de Protección de Datos (‘the AEPD’) and Mr Mario Costeja González (‘the data subject’) on the other side. The proceedings concern the application of the Data Protection Directive to an internet search engine that Google operates as service provider. In the national proceedings it is undisputed that some personal data regarding the data subject have been published by a Spanish newspaper, in two of its printed issues in 1998, both of which were republished at a later date in its electronic version made available on the internet. The data subject now thinks that this information should no longer be displayed in the search results presented by the internet search engine operated by Google, when a search is made of his name and surnames.
6. The questions referred to the Court fall into three categories. (8) The first group of questions relates to territorial scope of application of EU data protection rules. The second group addresses the issues relating to the legal position of an internet search engine service provider (9) in the light of the Directive, especially in terms of its scope of application ratione materiae. Finally, the third question concerns the so-called right to be forgotten and the issue of whether data subjects can request that some or all search results concerning them are no longer accessible through search engine. All of these questions, which also raise important points of fundamental rights protection, are new to the Court.
7. This appears to be the first case in which the Court is called upon to interpret the Directive in the context internet search engines; an issue that is seemingly topical for national data protection authorities and Member State courts. Indeed, the referring court has indiciated that it has several similar cases pending before it.
8. The most important previous case of this Court in which data protection issues and the internet have been addressed was Lindqvist (10). However, in that case internet search engines were not involved. The Directive itself has been interpreted in a number of cases. Of these Österreichischer Rundfunk, (11)Satakunnan Markkinapörssi and Satamedia (12) and Volker und Markus Schecke and Eifert (13) are particularily relevant. The role of internet search engines in relation to intellectual property rights and jurisdiction of courts has also been addressed in the case-law of the Court in Google France and Google, Portakabin, L’Oréal and Others, Interflora and Interflora British Unit and Wintersteiger. (14)
9. Since the adoption of the Directive, a provision on protection of personal data has been included in Article 16 TFEU and in Article 8 of the Charter of Fundamental Rights of the European Union (‘the Charter’). Moreover, in 2012, the Commission made a Proposal for a General Data Protection Regulation, (15) with a view to replacing the Directive. However, the dispute to hand has to be decided on the basis of existing law.
10. The present preliminary reference is affected by the fact that when the Commission proposal for the Directive was made in 1990, the internet in the present sense of the World Wide Web, did not exist, and nor were there any search engines. At the time the Directive was adopted in 1995 the internet had barely begun and the first rudimentary search engines started to appear, but nobody could foresee how profoundly it would revolutionise the world. Nowadays almost anyone with a smartphone or a computer could be considered to be engaged in activities on the internet to which the Directive could potentially apply.
II – Legal framework
A – The Data Protection Directive
11. Article 1 of the Directive obliges Member States to protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data, in accordance with the provisions of the Directive.
12. Article 2 defines, inter alia, the notions of ‘personal data’ and ‘data subject’, ‘processing of personal data’, ‘controller’ and ‘third party’.
13. According to Article 3, the Directive is to apply to the processing of personal data wholly or partly by automatic means, and in certain situations to the processing otherwise than by automatic means.
14. Pursuant to Article 4(1), a Member State is to apply the national provisions it adopts pursuant to the Directive to the processing of personal data where there is an establishment of the controller on its territory, or in cases where the controller is not established in the Union, if he makes use of equipment situated on the territory of the Member State for the purposes of processing personal data.
15. Article 12 of the Directive provides data subjects ‘a right of access’ to personal data processed by the controller and Article 14 a ‘right to object’ to the processing of personal data in certain situations.
16. Article 29 of the Directive sets up an independent advisory working party consisting, among others, of data protection authorities of the Member States (‘the Article 29 Working Party’).
B – National law
17. Organic Law No 15/1999 on data protection has transposed the Directive in Spanish law. (16)
III – Facts and questions referred for a preliminary ruling
18. In early 1998, a newspaper widely circulated in Spain published in its printed edition two announcements concerning a real-estate auction connected with attachment proceedings prompted by social security debts. The data subject was mentioned as the owner. At a later date an electronic version of the newspaper was made available online by its publisher.
19. In November 2009, the data subject contacted the publisher of the newspaper asserting that, when his name and surnames were entered in the Google search engine, a reference appeared to pages of the newspaper with the announcements concerning the real-estate auction. He argued that the attachment proceedings relating to his social security debts had been concluded and resolved many years earlier and were now of no relevance. The publisher replied to him saying that erasure of his data was not appropriate, given that the publication was effected by order of the Ministry of Labour and Social Affairs.
20. In February 2010, the data subject contacted Google Spain and requested that the search results should not show any links to the newspaper when his name and surnames were entered in the Google search engine. Google Spain forwarded the request to Google Inc., whose registered office is in California, United States, taking the view that the latter was the undertaking providing the internet search service.
21. Thereafter the data subject lodged a complaint with the AEPD asking that the publisher be required to remove or rectify the publication so that his personal data did not appear or else should use the tools made available by search engines to protect his personal data. He also asserted that Google Spain or Google Inc. should be required to remove or conceal his data so that they ceased to be included in the search results and reveal links to the newspaper.
22. By a decision on 30 July 2010, the Director of the AEPD upheld the complaint made by the data subject against Google Spain and Google Inc., calling on them to take the measures necessary to withdraw the data from their index and to render future access to them impossible but rejected the complaint against the publisher. This was so because publication of the data in the press was legally justified. Google Spain and Google Inc. have brought two appeals before the referring court, seeking annulment of the AEPD decision.
23. The national court has stayed the proceedings and referred the following questions to the Court for a preliminary ruling:
‘1. With regard to the territorial application of [the Directive] and, consequently, of the Spanish data protection legislation:
1.1. must it be considered that an “establishment”, within the meaning of Article 4(1)(a) of [the Directive], exists when any one or more of the following circumstances arise:
– when the undertaking providing the search engine sets up in a Member State an office or subsidiary for the purpose of promoting and selling advertising space on the search engine, which orientates its activity towards the inhabitants of that State,
or
– when the parent company designates a subsidiary located in that Member State as its representative and controller for two specific filing systems which relate to the data of customers who have contracted for advertising with that undertaking,
or
– when the office or subsidiary established in a Member State forwards to the parent company, located outside the European Union, requests and requirements addressed to it both by data subjects and by the authorities with responsibility for ensuring observation of the right to data protection, even where such collaboration is engaged in voluntarily?
1.2. Must Article 4(1)(c) of [the Directive] be interpreted as meaning that there is “use of equipment … situated on the territory of that Member State”
when a search engine uses crawlers or robots to locate and index information contained in web pages located on servers in that Member State
or
when it uses a domain name pertaining to a Member State and arranges for searches and the results thereof to be based on the language of that Member State?
1.3. Is it possible to regard as a use of equipment, in the terms of Article 4(1)(c) of [the Directive], the temporary storage of the information indexed by internet search engines? If the answer to that question is affirmative, can it be considered that that connecting factor is present when the undertaking refuses to disclose the place where it stores those indexes, invoking reasons of competition?
1.4. Regardless of the answers to the foregoing questions and particularly in the event that the [Court] considers that the connecting factors referred to in Article 4 of the Directive are not present:
must [the Directive] be applied, in the light of Article 8 of the [Charter], in the Member State where the centre of gravity of the conflict is located and more effective protection of the rights of European Union citizens is possible?
2. As regards the activity of search engines as providers of content in relation to [the Directive]:
2.1. in relation to the activity of the search engine of the ‘Google’ undertaking on the internet, as a provider of content, consisting in locating information published or included on the net by third parties, indexing it automatically, storing it temporarily and finally making it available to internet users according to a particular order of preference, when that information contains personal data of third parties,
must an activity like the one described be interpreted as falling within the concept of “processing of … data” used in Article 2(b) of [the Directive]?
2.2. If the answer to the foregoing question is affirmative, and once again in relation to an activity like the one described: must Article 2(d) of the Directive be interpreted as meaning that the undertaking managing the “Google” search engine is to be regarded as the ‘controller’ of the personal data contained in the web pages that it indexes?
2.3. In the event that the answer to the foregoing question is affirmative, may the national data-control authority (in this case the [AEPD]), protecting the rights embodied in Articles 12(b) and 14(a) of [the Directive], directly impose on the search engine of the “Google” undertaking a requirement that it withdraw from its indexes an item of information published by third parties, without addressing itself in advance or simultaneously to the owner of the web page on which that information is located?
2.4. In the event that the answer to the foregoing question is affirmative, would the obligation of search engines to protect those rights be excluded when the information that contains the personal data has been lawfully published by third parties and is kept on the web page from which it originates?
3. Regarding the scope of the right of erasure and/or the right to object, in relation to the “derecho al olvido” (the “right to be forgotten”), the following question is asked:
3.1. must it be considered that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of [the Directive], extend to enabling the data subject to address himself to search engines in order to prevent indexing of the information relating to him personally, published on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion, even though the information in question has been lawfully published by third parties?’
24. Written observations were submitted by Google, the Governments of Spain, Greece, Italy, Austria and Poland, and European Commission. With the exception of the Polish Government, all of them attended the hearing on 26 February 2013, as did the representative of the data subject, and presented oral argument.
IV – Preliminary observations
A – Introductory remarks
25. The key issue in the present case is how the role of internet search engine service providers should be interpreted in the light of the existing EU legal instruments relating to data protection, and in particular the Directive. Therefore it is instructive to start with some observations relating to the development of data protection, the internet and internet search engines.
26. At the time when the Directive was negotiated and adopted in 1995 (17), it was given a wide scope of application ratione materiae. This was done in order to catch up with technological developments relating to data processing by controllers that was more decentralised than filing systems based on traditional centralised data banks, and which also covered new types of personal data like images and processing techniques such as free text searches. (18)
27. In 1995, generalised access to the internet was a new phenomenon. Today, after almost two decades, the amount of digitalised content available online has exploded. It can be easily accessed, consulted and disseminated through social media, as well as downloaded to various devices, such as tablet computers, smartphones and laptop computers. However, it is clear that the development of the internet into a comprehensive global stock of information which is universally accessible and searchable was not foreseen by the Community legislator.
28. At the heart of the present preliminary reference is the fact that the internet magnifies and facilitates in an unprecended manner the dissemination of information. (19) Similarly, as the invention of printing in the 15th century enabled reproduction of an unlimited number of copies that previously needed to be written by hand, uploading of material on to the internet enables mass access to information which earlier could perhaps only be found after painstaking searches, and at limited physical locations. Universal access to information on the internet is possible everywhere, with the exception of those countries where the authorities have limited, by various technical means (such as electronic firewalls), access to the internet or where the access to telecommunications is controlled or scarce.
29. Due to these developments, the potential scope of application of the Directive in the modern world has become be surprisingly wide. Let us think of a European law professor who has downloaded, from the Court’s website, the essential case-law of the Court to his laptop computer. In terms of the Directive, the professor could be considered to be a ‘controller’ of personal data originating from a third party. The professor has files containing personal data that are processed automatically for search and consultation within the context of activities that are not purely personal or household related. In fact, anyone today reading a newspaper on a tablet computer or following social media on a smartphone appears to be engaged in processing of personal data with automatic means, and could potentially fall within the scope of application of the Directive to the extent this takes place outside his purely private capacity. (20) In addition, the wide interpretation given by the Court to the fundamental right to private life in a data protection context seems to expose any human communication by electronic means to the scrutiny by reference to this right.
30. In the current setting, the broad definitions of personal data, processing of personal data and controller are likely to cover an unprecedently wide range of new factual situations due to technological development. This is so because many, if not most, websites and files that are accessible through them include personal data, such as names of living natural persons. This obliges the Court to apply a rule of reason, in other words, the principle of proportionality, in interpreting the scope of the Directive in order to avoid unreasonable and excessive legal consequences. This moderate approach was applied by the Court already in Lindqvist, where it rejected an interpretation which could have lead to an unreasonably wide scope of application of Article 25 of the Directive on transfer of personal data to third countries in the context of the internet. (21)
31. Hence, in the present case it will be necessary to strike a correct, reasonable and proportionate balance between the protection of personal data, the coherent interpretation of the objectives of the information society and legitimate interests of economic operators and internet users at large. Albeit the Directive has not been amended since its adoption in 1995, its application to novel situations has been unavoidable. It is a complex area where law and new technology meet. The opinions adopted by the Article 29 Working Party provide very helpful analysis in this respect. (22)
B – Internet search engines and data protection
32. When analysing the legal position of an internet search engine in relation to the data protection rules, the following elements should be noted. (23)
33. First, in its basic form, an internet search engine does not in principle create new autonomous content. In its simplest form, it only indicates where already existing content, made available by third parties on the internet, can be found by giving a hyperlink to the website containing the search terms.
34. Second, the search results displayed by an internet search engine are not based on an instant search of the whole World Wide Web, but they are gathered from content that the internet search engine has previously processed. This means that the internet search engine has retrieved contents from existing websites and copied, analysed and indexed that content on its own devices. This retrieved content contains personal data if any of the source web pages do.
35. Third, to make the results more user-friendly, internet search engines often display additional content alongside the link to the original website. There can be text extracts, audiovisual content or even snapshots of the source web pages. This preview information can be at least in part retrieved from the devices of the internet search engine service provider, and not instantly from the original website. This means that the service provider actually holds the information so displayed.
C – Regulation of internet search engines
36. The European Union has attached great importance to the development of the information society. In this context, the role of information society intermediaries has also been addressed. Such intermediaries act as bridge builders between content providers and internet users. The specific role of intermediaries has been recognised, for example, in the Directive (recital 47 in the preamble thereto), in the ecommerce Directive 2000/31 (24) (Article 21(2) and recital 18 in the preamble thereto) as well as in Opinion 1/2008 of the Article 29 Working Party. The role of internet service providers has been considered as crucial for the information society, and their liability for the third-party content they transfer and/or store has been limited in order to facilitate their legitimate activities.
37. The role and legal position of internet search engine service providers has not been expressly regulated in EU legislation. As such ‘information location tool services’ are ‘provided at a distance, by electronic means and at the individual request of a recipient of services’, and amount thus to an information society service consisting of provision of tools that allow for search, access and retrieval of data. However, internet search engine service providers like Google who do not provide their service in return for remuneration from the internet users, appear to fall in that capacity outside the scope of application of ecommerce Directive 2000/31. (25)
38. Despite this, it is necessary to analyse their position vis-à-vis the legal principles underpinning the limitations on the liability of internet service providers. In other words, to what extent are activities performed by an internet search engine service provider, from the point of view of liability principles, analogous to the services enumerated in the ecommerce Directive 2000/31 (transfer, mere caching, hosting) or transmission service mentioned in recital 47 in the preamble to the Directive, and to what extent does the internet search engine service provider act as content provider in its own right.
D – The role and liability of source web page publishers
39. The Court found in Lindqvist that ‘the operation of loading personal data on an internet page must be considered to be [processing of personal data]’. (26) Moreover, ‘placing information on an internet page entails, under current technical and computer procedures, the operation of loading that page onto a server and the operations necessary to make that page accessible to people who are connected to the internet. Such operations are performed, at least in part, automatically.’ The Court concluded that ‘the act of referring, on an internet page, to various persons and identifying them by name or by other means’ ‘constitutes “the processing of personal data” wholly or partly by automatic means within the meaning of Article 3(1) of [the Directive]’.
40. It follows from the above findings in Lindqvist that the publisher of source web pages containing personal data is a controller of processing of personal data within the meaning of the Directive. As such the publisher is bound by all the obligations the Directive imposes on the controllers.
41. Source web pages are kept on host servers connected to internet. The publisher of source web pages can make use of ‘exclusion codes’ (27) for the operation of the internet search engines. Exclusion codes advise search engines not to index or to store a source web page or to display it within the search results. (28) Their use indicates that the publisher does not want certain information on the source web page to be retrieved for dissemination through search engines.
42. Therefore, technically, the publisher has the possibility to include in his web pages exclusion codes restricting indexing and archiving of the page, and thereby enhancing the protection of personal data. In the extreme, the publisher can withdraw the page from the host server, republish it without the objectionable personal data, and require updating of the page in the cache memories of search engines.
43. Hence, the person who publishes the content on the source web page, is in his capacity of controller liable for the personal data published on the page, and that person has various means for fulfilling his obligations in this respect. This channelling of legal liability is in line with the established principles of publisher liability in the context of traditional media. (29)
44. This liability of publisher does not, however, guarantee that the data protection problems may be dealt with conclusively only by recourse to the controllers of the source web pages. As the referring court has pointed out, it is possible that the same personal data has been published on innumerable pages, which would make tracing and contacting all relevant publishers difficult or even impossible. Moreover, the publisher might reside in a third country, and the web pages concerned could fall outside the scope of application of EU data protection rules. There might also be legal impediments such as in the present case where the retaining of the original publication on the internet has been considered to be lawful.
45. In fact, universal accessibility of information on the internet relies on internet search engines, because finding relevant information without them would be too complicated and difficult, and would produce limited results. As the referring court rightly observes, acquiring information about announcements on the forced sale of the data subject’s property would previously have required a visit to the archives of the newspaper. Now this information can be acquired by typing his name into an internet search engine and this makes the dissemination of such data considerably more efficient, and at the same time, more disturbing for the data subject. Internet search engines may be used for extensive profiling of individuals by searching and collecting their personal data. Yet the fear relating to the profiling of individuals was the inspiration for the development of modern data protection legislation. (30)
46. For these reasons, it is important to examine the liability of internet search engine service providers in respect of personal data published on third-party source web pages which are accessible through their search engines. In other words, the Court is here faced with the issue of ‘secondary liability’ of this category of information society service providers analogous to that it has dealt with in its case-law on trademarks and electronic marketplaces. (31)
E – Activities of an internet search engine service provider
47. An internet search engine service provider may have various types of activities. The nature and assessment of those activities from the data protection point of view may be different.
48. An internet search engine service provider may automatically acquire personal data relating to its users, (32) that is, persons who enter search terms into the search engine. This automatically transmitted data can include their IP address, user preferences (language, etc.), and of course the search terms themselves which in the case of so-called vanity searches (that is, searches made by a user with his own name) easily reveal the identity of users. Moreover, as regards persons who have user accounts and who have thus registered themselves, their personal data such as names, e-mail addresses and telephone numbers, almost invariably end up in the hands of the internet search engine service provider.
49. The revenue of internet search engine service providers does not come from the users who enter the search terms in the search engine, but from the advertisers who buy search terms as keywords so that their advertisement is displayed simultaneously with the search results of using that keyword. (33) It is obvious that personal data relating to advertising customers comes into the possession of the service provider.
50. However, the present preliminary ruling concerns Google acting as a simple internet search engine service provider in relation to data, including personal data, published on the internet in third-party source web pages and processed and indexed by Google’s search engine. Hence, the problems of the users and advertising customers, to whose data the Directive is undoubtedly applicable with respect to their relationship with Google, do not affect the analysis of the second group of preliminary questions. However, concerning the jurisdictional issues under the first group of preliminary questions these customer groups may be relevant.
V – First group of questions relating to territorial scope of application of the Directive
A – Introduction
51. The first group of preliminary questions concerns the interpretation of Article 4 of the Directive, as regards the criteria determining the territorial scope of application of the national implementing legislation.
52. The referring court has divided its preliminary questions with regard to the territorial application of the Spanish data protection legislation into four sub-questions. The first sub-question relates to the concept of an ‘establishment’, within the meaning of Article 4(1)(a) of the Directive and the second to the circumstances where there is ‘use of equipment … situated on the territory of that Member State’ within the meaning of Article 4(1)(c) thereof. The third sub-question asks if it is possible to regard, as use of equipment, the temporary storage of the information indexed by internet search engines, and if the answer to that question is affirmative, whether the presence of this connecting factor may be presumed where the undertaking refuses to disclose the place where it stores those indexes. The fourth sub-question asks whether the legislation implementing the Directive must be applied, in the light of Article 8 of the Charter, in the Member State where the centre of gravity of the dispute is situated and where more effective protection of the rights of European Union citizens is possible.
53. I shall first address the last sub-question, which the national court has posed ‘regardless of the answers to the foregoing questions and particularly in the event that [the Court] considers that the connecting factors referred to in Article 4(1) of the Directive are not present’.
B – The geographical centre of gravity of the dispute in itself is not sufficient to render the Directive applicable
54. According to Article 51(2) thereof, the Charter does not extend the field of application of European Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties. (34) This principle also applies to Article 8 of the Charter on protection of personal data. Hence, the interpretation of the Directive in accordance with the Charter cannot add any new elements that might give rise to the territorial applicability of the national legislation implementing the Directive to those laid down in Article 4(1) of the Directive. Article 8 of the Charter must, of course, be taken into account in the interpretation of the concepts used in Article 4(1) of the Directive, but the points of attachment defined by the EU legislator cannot be supplemented with an entirely new criterion by reference to that fundamental right. (35)
55. The Article 29 Working Party rightly emphasised that the territorial scope of application of the Directive and the national implementing legislation is triggered either by the location of the establishment of the controller, or the location of the means or equipment being used when the controller is established outside the EEA. Nationality or place of habitual residence of data subjects is not decisive, nor is the physical location of the personal data. (36)
56. The Article 29 Working Party has proposed that in future legislation relevant targeting of individuals could be taken into account in relation to controllers not established in the EU. (37) In the Commission Proposal for a General Data Protection Regulation (2012) (38) the offering of goods or services to data subjects residing in the European Union would be a factor making EU data protection law applicable to third country controllers. Such an approach, attaching the territorial applicability of EU legislation to the targeted public, is consistent with the Court’s case-law on the applicability of the ecommerce Directive 2000/31, (39) Regulation No 44/2001, (40) and Directive 2001/29 (41) to cross-border situations.
57. By contrast, the criterion of a targeted public, in the present case Spanish users of Google’s internet search engine, in whose eyes the data subject’s reputation may have been harmed as a result of the disputed announcements, does not seem to be a factor triggering the territorial applicability of the Directive and its national implementation legislation.
58. Therefore, the centre of gravity of the dispute in Spain cannot be added to the criteria set out in Article 4(1) of the Directive which, in my opinion, fully harmonises the territorial scope of application of Member States’ data protection laws. This applies irrespective of whether such a centre of gravity is the nationality or residence of the data subject concerned, the location of the disputed personal data in the newspaper’s website, or the fact that Google’s Spanish website especially targeted the Spanish public. (42)
59. For these reasons I propose that, if the Court finds it necessary to answer that question, it should answer the fourth sub-question in the negative.
C – The applicability of the criterion of ‘establishment in the EU’ to a third country internet search engine service provider
60. According to Article 4(1) of the Directive, the primary factor that gives rise to the territorial applicability of the national data protection legislation is the processing of personal data carried out in the context of the activities of an establishment of the controller on the territory of the Member State. Further, when a controller is not established on EU territory but uses means or equipment (43) situated on the territory of the Member State for processing of personal data, the legislation of that Member State applies unless such equipment or means is used only for purposes of transit through the territory of the EU.
61. As noted above, the Directive and Article 4 thereof were adopted before the large-scale provision of on-line services on the internet started. Moreover, in this respect, its wording is not consistent and is incomplete. (44) It is no wonder that data protection experts have had considerable difficulties in interpreting it in relation to the internet. The facts of the present case illustrate these problems.
62. Google Inc. is a Californian firm with subsidiaries in various EU Member States. Its European operations are to a certain extent coordinated by its Irish subsidiary. It currently has data centres at least in Belgium and Finland. Information on the exact geographical location of the functions relating to its search engine is not made public. Google claims that no processing of personal data relating to its search engine takes place in Spain. Google Spain acts as commercial representative of Google for its advertising functions. In this capacity is has taken responsibility for the processing of personal data relating to its Spanish advertising customers. Google denies that its search engine performs any operations on the host servers of the source web pages, or that it collects information by means of cookies of non registered users of its search engine.
63. In this factual context the wording of Article 4(1) of the Directive is not very helpful. Google has several establishments on EU territory. This fact would, according to a literal interpretation, exclude the applicability of the equipment condition laid down in Article 4(1)(c) of the Directive. On the other hand, it is not clear to what extent and where processing of personal data of EU resident data subjects takes place in the context of its EU subsidiaries.
64. In my opinion the Court should approach the question of territorial applicability from the perspective of the business model of internet search engine service providers. This, as I have mentioned, normally relies on keyword advertising which is the source of income and, as such, the economic raison d’être for the provision of a free information location tool in the form of a search engine. The entity in charge of keyword advertising (called ‘referencing service provider’ in the Court’s case-law (45)) is linked to the internet search engine. This entity needs presence on national advertising markets. For this reason Google has established subsidiaries in many Member States which clearly constitute establishments within the meaning of Article 4(1)(a) of the Directive. It also provides national web domains such as google.es or google.fi. The activity of the search engine takes this national diversification into account in various ways relating to the display of the search results because the normal financing model of keyword advertising follows the pay-per-click principle. (46)
65. For these reasons I would adhere to the Article 29 Working Party’s conclusion to the effect that the business model of an internet search engine service provider must be taken into account in the sense that its establishment plays a relevant role in the processing of personal data if it is linked to a service involved in selling targeted advertisement to inhabitants of that Member State. (47)
66. Moreover, even if Article 4 of the Directive is based on a single concept of controller as regards its substantive provisions, I think that for the purposes of deciding on the preliminary issue of territorial applicability, an economic operator must be considered as a single unit, and thus, at this stage of analysis, not be dissected on the basis of its individual activities relating to processing of personal data or different groups of data subjects to which its activities relate.
67. In conclusion, processing of personal data takes place within the context of a controller’s establishment if that establishment acts as the bridge for the referencing service to the advertising market of that Member State, even if the technical data processing operations are situated in other Member States or third countries.
68. For this reason, I propose that the Court should answer the first group of preliminary questions in the sense that processing of personal data is carried out in the context of the activities of an ‘establishment’ of the controller within the meaning of Article 4(1)(a) of the Directive when the undertaking providing the search engine sets up in a Member State for the purpose of promoting and selling advertising space on the search engine, an office or subsidiary which orientates its activity towards the inhabitants of that State.
VI – Second group of questions relating to scope of application ratione materiae of the Directive
69. The second group of questions pertains to the legal position of an internet search engine service provider offering access to an internet search engine in the light of the provisions of the Directive. The national court has formulated them as concerning the notions of ‘processing’ of personal data (question 2.1), and ‘controller’ (question 2.2.), the competences of the national data protection authority to give orders directly to the internet search engine service provider (question 2.3) and the possible exclusion of protection of personal data by the internet search engine service provider concerning information lawfully published by third parties on the internet (question 2.4). These last two sub-questions are relevant only if the internet search engine service provider can be considered as processing personal data on third-party source web pages and as being the controller thereof.
A – Processing of personal data by an internet search engine
70. The first sub-question in this group concerns the applicability of the notions of ‘personal data’ and ‘processing’ thereof to a internet search engine service provider such as Google, on the assumption that we are not discussing personal data of users or advertisers, but personal data published on third-party source web pages, and processed by internet search engine operated by the service provider. This processing is described by the national court as consisting of locating information published or included on the internet by third parties, indexing it automatically, storing it temporarily and finally, making it available to internet users according to a particular order of preference.
71. In my opinion an affirmative answer to this sub-question does not require much discussion. The concept of personal data is given a wide definition in the Directive, this wide definition has been applied by the Article 29 Working Party and it has been confirmed by the Court. (48)
72. As to ‘processing’, source web pages on the internet may and often do include names, images, addresses, telephone numbers, descriptions and other indications, with the help of which a natural person can be identified. The fact that their character as personal data would remain ‘unknown’ to internet search engine service provider, whose search engine works without any human interaction with the data gathered, indexed and displayed for search purposes, does not change this finding. (49) The same applies to the fact that the presence of personal data in the source web pages is in a certain sense random for the internet search engine service provider because for the service provider, or more precisely for the crawling, analysing and indexing functions of the search engine targeting all web pages accessible on the internet, there may be no technical or operational difference between a source web page containing personal data and another not including such data. (50) In my opinion these facts should, however, influence the interpretation of the concept of ‘controller’.
73. Google’s search engine’s crawler function, called ‘googlebot’, crawls on the internet constantly and systematically and, advancing from one source web page to another on the basis of hyperlinks between the pages, requests the visited sites to send to it a copy of the visited page. (51) The copies of such source web pages are analysed by Google’s indexing function. Sign strings (keywords, search terms) found on the pages are recorded in the index of the search engine. (52) Google’s elaborate search algorithm also assesses the relevance of the search results. The combinations of these keywords with the URL addresses, where they can be found, form the index of the search engine. The searches initiated by the users are executed within the index. For the purposes of indexing and displaying the search results, the copy of the pages is registered in the cache memory of the search engine. (53)
74. A copy of the sought source web page, stored in cache, can be displayed after the user has made the search. However, the user can access the original page if, for example, he seeks the display of pictures in the source web page. The cache is updated frequently but there may be situations where the page displayed by the search engine does not correspond to the source web pages in the host server because of the changes made to it or its deletion. (54)
75. It goes without saying that the operations described in the previous paragraphs count as ‘processing’ of the personal data on the source web pages copied, indexed, cached and displayed by the search engine. More particularly they entail collection, recording, organisation and storage of such personal data and they may entail their use, disclosure by transmission, dissemination or otherwise making available and combining of personal data in the sense of Article 2(b) of the Directive.
B – The concept of ‘controller’
76. A controller (55) is according to Article 2(d) of the Directive ‘the natural or legal person … which alone or jointly with others determines the purposes and means of the processing of personal data’. In my opinion the core issue in this case is whether, and to what extent, an internet search engine service provider is covered by this definition.
77. All parties except for Google and the Greek Government propose an affirmative answer to this question, which might easily be defended as a logical conclusion of a literal and perhaps even teleological interpretation of the Directive, given that the basic definitions of the Directive were formulated in a comprehensive manner in order to cover new developments. In my opinion such an approach would, however, represent a method that completely ignores the fact that when the Directive was drated it was not possible to take into account the emergence of the internet and the various related new phenomena.
78. When the Directive was adopted the World Wide Web had barely become a reality, and search engines were at their nascent stage. The provisions of the Directive simply do not take into account the fact that enormous masses of decentrally hosted electronic documents and files are accessible from anywhere on the globe and that their contents can be copied and analysed and disseminated by parties having no relation whatsoever to their authors or those who have uploaded them onto a host server connected to the internet.
79. I recall that in Lindqvist the Court did not follow the maximalist approach proposed by the Commission in relation to the interpretation of the notion of transfer of data to third countries. The Court stated that ‘[given], first, the state of development of the internet at the time [the Directive] was drawn up and, second, the absence, in Chapter IV, of criteria applicable to the use of internet, one cannot presume that the Community legislature intended the expression “transfer [of data] to a third country” to cover the loading, by an individual in Mrs Lindqvist’s position, of data onto an internet page, even if those data are thereby made accessible to persons in third countries with the technical means to access them’. (56) In my opinion this implies that in the interpretation of the Directive, vis-à-vis new technological phenomena, the principle of proportionality, the objectives of the Directive and means provided therein for their attainment must be taken into account in order to achieve a balanced and reasonable outcome.
80. To my mind, one key question here is whether it matters that within the definition of controller the Directive refers to the controller as the person ‘determining the purposes and means of the processing of the personal data’ (emphasis added). The parties who consider Google to be a controller base this assessment on the undeniable fact that the service provider running an internet search engine determines the purposes and means of the processing of data for his purposes.
81. I doubt, however, whether this leads to a truthful construction of the Directive in a situation where the object of processing consists of files containing personal data and other data in a haphazard, indiscriminate and random manner. Does the European law professor mentioned in my example in paragraph 29 above determine the purposes and means of the processing of personal data included in the Court’s judgments he has downloaded to his laptop? The finding of the Article 29 Working Party according to which ‘users of the search engine service could strictly speaking also be considered as controllers’ reveals the irrational nature of the blind literal interpretation of the Directive in the context of the internet. (57) The Court should not accept an interpretation which makes a controller of processing of personal data published on the internet of virtually everybody owning a smartphone or a tablet or a laptop computer.
82. In my opinion the general scheme of the Directive, most language versions and the individual obligations it imposes on the controller are based on the idea of responsibility of the controller over the personal data processed in the sense that the controller is aware of the existence of a certain defined category of information amounting to personal data and the controller processes this data with some intention which relates to their processing as personal data. (58)
83. The Article 29 Working Party correctly notes that ‘[t]he concept of controller is a functional concept, intended to allocate responsibilities where the factual influence is, and thus based on a factual rather than a formal analysis’. (59) It continues that ‘the controller must determine which data shall be processed for the purpose(s) envisaged’. (60) The substantive provisions of the Directive, and more particularly Articles 6, 7 and 8 thereof, are, in my opinion, based on the assumption that the controller knows what he is doing in relation to the personal data concerned, in the sense that he is aware of what kind of personal data he is processing and why. In other words, the data processing must appear to him as processing of personal data, that is ‘information relating to an identified or identifiable natural person’ in some semantically relevant way and not a mere computer code. (61)
C – An internet search engine service provider is not a ‘controller’ of personal data on third-party source web pages
84. The internet search engine service provider merely supplying an information location tool does not exercise control over personal data included on third-party web pages. The service provider is not ‘aware’ of the existence of personal data in any other sense than as a statistical fact web pages are likely to include personal data. In the course of processing of the source web pages for the purposes of crawling, analysing and indexing, personal data does not manifest itself as such in any particular way.
85. It is for this reason that I find the approach of the Article 29 Working Party adequate as it seeks to draw a line between the entirely passive and intermediary functions of search engines and situations where their activity represents real control over the personal data processed. (62) For the sake of completeness, it needs to be added that issue of whether the personal data has become public (63) or has been disclosed legally on third-party source web pages is not relevant for application of the Directive. (64)
86. The internet search engine service provider has no relationship with the content of third-party source web pages on the internet where personal data may appear. Moreover, as the search engine works on the basis of copies of the source web pages that its crawler function has retrieved and copied, the service provider does not have any means of changing the information in the host servers. Provision of an information location tool does not imply any control over the content. It does not even enable the internet search engine service provider to distinguish between personal data, in the sense of the Directive, that relates to an identifiable living natural person, and other data.
87. Here I would draw from the principle expressed in recital 47 in the preamble to the Directive. It states that the controller of messages containing personal data transmitted by telecommunication or by electronic mail is the originator of the message and not the person offering transmission services. This recital, as well as the exceptions to liability provided in the ecommerce Directive 2000/31 (Articles 12, 13 and 14), builds on the legal principle according to which automated, technical and passive relationships to electronically stored or transmitted content do not create control or liability over it.
88. The Article 29 Working Party has emphasised that, first and foremost, the purpose of the concept of controller is to determine who is to be responsible for compliance with data protection rules and to allocate this responsibility to the locus of the factual influence. (65) According to the Working Party, ‘[t]he principle of proportionality requires that to the extent that a search engine provider acts purely as an intermediary, it should not be considered as the principal controller with regard to the content related processing of personal data that is taking place. In this case the principal controllers of personal data are the information providers.’ (66)
89. In my view the internet search engine service provider cannot in law or in fact fulfil the obligations of controller provided in Articles 6, 7 and 8 of the Directive in relation to the personal data on source web pages hosted on third-party servers. Therefore a reasonable interpretation of the Directive requires that the service provider is not generally considered as having that position. (67)
90. An opposite opinion would entail internet search engines being incompatible with EU law, a conclusion I would find absurd. Specifically, if internet search engine service providers were considered as controllers of the personal data on third-party source web pages and if on any of these pages there would be ‘special categories of data’ referred to in Article 8 of the Directive (e.g. personal data revealing political opinions or religious beliefs or data concerning the health or sex life of individuals), the activity of the internet search engine service provider would automatically become illegal, when the stringent conditions laid down in that article for the processing of such data were not met.
D – Circumstances in which the internet search engine service provider is a ‘controller’
91. Internet search engine service provider clearly controls the index of the search engine which links key words to the relevant URL addresses. The service provider determines how the index is structured, and it may technically block certain search results, for example by not displaying URL addresses from certain countries or domains within the search results. (68) Moreover, the internet search engine service provider controls its index in the sense that he decides whether exclusion codes (69) on source web page are to be complied with or not.
92. In contrast, the contents of the cache memory of the internet search engine cannot be considered as falling within the control of the service provider because the cache is the result of completely technical and automated processes producing a mirror image of the text data of the crawled web pages, with the exception of data excluded from indexing and archiving. It is of interest that some Member States seem to provide special horizontal exceptions regarding the liability of search engines analogous to the exception provided in ecommerce Directive 2000/31 for certain information society service providers. (70)
93. However, with regard to the contents of cache, a decision not to comply with the exclusion codes (71) on a web page entails in my opinion control in the sense of the Directive over such personal data. The same applies in situations where the internet search engine service provider does not update a web page in its cache despite a request received from the website.
E – The obligations of an internet search engine service provider as ‘controller’
94. It is obvious that if and when the internet search engine service provider can be considered as ‘controller’ he must comply with the obligations provided by the Directive.
95. As to the criteria relating making data processing legitimate in the absence of a data subject’s consent (Article 7(a) of the Directive), it seems obvious that provision of internet search engine services pursues as such legitimate interests (Article 7(f) of the Directive), namely (i) making information more easily accessible for internet users; (ii) rendering dissemination of the information uploaded on the internet more effective; and (iii) enabling various information society services supplied by the internet search engine service provider that are ancillary to the search engine, such as the provision of keyword advertising. These three purposes relate respectively to three fundamentals rights protected by the Charter, namely freedom of information and freedom of expression (both in Article 11) and freedom to conduct a business (Article 16). Hence, an internet search engine service provider pursues legitimate interests, within the meaning of Article 7(f) of the Directive, when he processes data made available on the internet, including personal data.
96. As controller, an internet search engine service provider must respect the requirements laid down in Article 6 of the Directive. In particular, the personal data must be adequate, relevant, and not excessive in relation to the purposes for which they are collected, and up to date, but not out dated for the purposes for which they were collected. Moreover, the interests of the ‘controller’, or third parties in whose interest the processing in exercised, and those of the data subject, must be weighed.
97. In the main proceedings, the data subject’s claim seeks to remove from Google’s index the indexing of his name and surnames with the URL addresses of the newspaper pages displaying the personal data he is seeking to suppress. Indeed, names of persons are used as search terms, and they are recorded as keywords in search engines’ indexes. Yet, usually a name does not as such suffice for direct identification of a natural person on the internet because globally there are several, even thousands or millions of persons with the same name or combination of a given name(s) and surname. (72) Nevertheless, I assume that in most cases combining a given name and surname as a search term enables the indirect identification of a natural person in the sense of Article 2(a) of the Directive as the search result in a search engine’s index reveals a limited set of links permitting the internet user to distinguish between persons with the same name.
98. A search engine’s index attaches names and other identifiers used as a search term to one or several links to web pages. Inasmuch as the link is adequate in the sense that the data corresponding to the search term really appears or has appeared on the linked web pages, the index in my opinion complies with the criteria of adequacy, relevancy, proportionality, accuracy and completeness, set out in Articles 6(c) and 6(d) of the Directive. As to the temporal aspects referred to in Articles 6(d) and 6(e) (personal data being up to date and personal data not being stored longer than necessary), these issues should also be addressed from the point of view of the processing in question, that is provision of information location service, and not as an issue relating to the content of the source web pages. (73)
F – Conclusion on the second group of questions
99. On the basis of this reasoning, I take the view that a national data protection authority cannot require an internet search engine service provider to withdraw information from its index except for the cases where this service provider has not complied with the exclusion codes (74) or where a request emanating from the website regarding update of cache memory has not been complied with. This scenario does not seem pertinent for the present preliminary reference. A possible ‘notice and take down procedure’ (75) concerning links to source web pages with illegal or inappropriate contents is a matter of national law civil liability based on grounds other than the protection of personal data. (76)
100. For these reasons I propose that the Court answers the second group of questions in the sense that under the circumstances specified in the preliminary reference an internet search engine service provider ‘processes’ personal data in the sense of Article 2(b) of the Directive. However, the service provider cannot be considered as ‘controller’ of the processing of such personal data in the sense of Article 2(d) of the Directive with the exception explained above.
VII – Third question relating to the data subject’s possible ‘right to be forgotten’
A – Preliminary observations
101. The third preliminary question is only relevant if the Court either rejects the conclusion I have reached above to the effect that Google is not generally to be considered as a ‘controller’ under Article 2(d) of the Directive, or to the extent the Court accepts my assertion that there are instances where an internet search engine service provider such as Google could be considered as having such a position. Otherwise, the section that follows is redundant.
102. In any event, by its third question the national court asks whether the rights to erasure and blocking of data, provided for in Article 12(b) of the Directive, and the right to object, provided for in Article 14(a) of the Directive, extend to enabling the data subject to contact the internet search engine service providers himself in order to prevent indexing of the information relating to him personally that has been published on third parties’ web pages. By so doing, a data subject seeks to prevent potentially prejudicial information from being known to internet users, or is expressing a desire for the information to be consigned to oblivion, even though the information in question has been lawfully published by third parties. In other words the national court asks in substance whether a ‘right to be forgotten’ can be founded on Article 12(b) and 14(a) of the Directive. This is the first issue to be addressed in the analysis that follows, which will be based on the wording and objectives of those provisions.
103. If I conclude that Articles 12(b) and 14(a) of the Directive, in and of themselves, do not afford this protection, I will then consider whether such an interpretation is compatible with the Charter. (77) This will require consideration of the right to protection of personal data in Article 8, right to respect for private and family life in Article 7, freedom of expression and information as protected in Article 11 (and both with respect to the freedom of expression of publishers of web pages and the freedom of internet users to receive information), and the freedom to conduct a business in Article 16. Indeed, the rights of data subjects in Articles 7 and 8 will need to be juxtaposed against the rights protected by Articles 11 and 16 of those who wish to disseminate or access the data.
B – Do the rights to rectification, erasure, blocking and objection provided in the Directive amount to a data subject’s right ‘to be forgotten’?
104. The rights to rectification, erasure and blocking of data provided in Article 12(b) of the Directive concern data, the processing of which does not comply with the provisions of the Directive, in particular because of the incomplete or inaccurate nature of the data (my emphasis).
105. The order for reference recognises that the information appearing on the web pages concerned cannot be regarded as incomplete or inaccurate. Even less is it claimed that Google’s index or the contents of its cache containing such data may be so described. Therefore, the right to rectification, erasure or blocking, referred to in Article 12(b) of the Directive, will only arise if Google’s processing of personal data from third-party source web pages is incompatible with the Directive for other reasons.
106. Article 14(a) of the Directive obliges Member States to grant a data subject the right to object at any time, on compelling legitimate grounds relating to his particular situation, to the processing of data relating to him, save where otherwise provided by national legislation. This applies especially in cases referred to in Articles 7(e) and 7(f) of the Directive, that is where processing is necessary in view of a public interest or for the purposes of the legitimate interests pursued by the controller or by third parties. Furthermore, according to Article 14(a), ‘the processing instigated by the controller’ may no longer involve the objected data if the objection is justified.
107. In the situations where internet search engine service providers are considered to be controllers of the processing of personal data, Article 6(2) of the Directive obliges them to weigh the interests of the data controller, or third parties in whose interest the processing is exercised, against those of the data subject. As the Court observed in ASNEF and FECEMD, whether or not the data in question already appears in public sources is relevant to this balancing exercise. (78)
108. However, as almost all of the parties having presented written observations in this case have asserted, I consider that the Directive does not provide for a general right to be forgotten in the sense that a data subject is entitled to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests. The purpose of processing and the interests served by it, when compared to those of the data subject, are the criteria to be applied when data is processed without the subject’s consent, and not the subjective preferences of the latter. A subjective preference alone does not amount to a compelling legitimate ground within the meaning of Article 14(a) of the Directive.
109. Even if the Court were to find that internet search engine service providers were responsible as controllers, quod non, for personal data on third-party source web pages, a data subject would still not have an absolute ‘right to be forgotten’ which could be relied on against these service providers. However, the service provider would need to put itself in the position of the publisher of the source web page and verify whether dissemination of the personal data on the page can at present be considered as legal and legitimate for the purposes of the Directive. In other words, the service provider would need to abandon its intermediary function between the user and the publisher and assume responsibility for the content of the source web page, and when needed, to censure the content by preventing or limiting access to it.
110. For the sake of completeness it is useful to recall that the Commission Proposal for a General Data Protection Regulation provides in its Article 17 for a right to be forgotten. However, the proposal seems have met with considerable opposition, and it does not purport to represent a codification of existing law, but an important legal innovation. Therefore it does not seem affect the answer to be given to the preliminary question. It is of interest, however, that according to Article 17(2) of the proposal ‘[w]here the controller … has made the personal data public, it shall take all reasonable steps … in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data’. This text seems to consider internet search engine service providers more as third parties than as controllers in their own right.
111. I therefore conclude that Articles 12(b) and 14(a) of the Directive do not provide for a right to be forgotten. I will now consider whether this interpretation of these provisions complies with the Charter.
C – The fundamental rights in issue
112. Article 8 of the Charter guarantees everyone the right to the protection of his personal data. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned, or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him, and the right to have it rectified. Compliance with these rules shall be subject to control by an independent authority.
113. In my opinion this fundamental right, being a restatement of the European Union and Council of Europe acquis in this field, emphasises the importance of protection of personal data, but it does not as such add any significant new elements to the interpretation of the Directive.
114. According to Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications. This provision, being in substance identical to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), must be duly taken into account in the interpretation of the relevant provisions of the Directive, which requires the Member States to protect in particular the right to privacy.
115. I would recall that in the context of the ECHR, Article 8 thereof also covers issues relating to protection of personal data. For this reason, and in conformity with Article 52(3) of the Charter, the case-law of the European Court of Human Rights on Article 8 ECHR is relevant both to the interpretation of Article 7 of the Charter and to the application of the Directive in conformity with Article 8 of the Charter.
116. The European Court of Human Rights concluded in Niemietz that professional and business activities of an individual may fall within the scope of private life as protected under Article 8 ECHR. (79) This approach has been applied in subsequent case-law of that court.
117. Moreover, this Court found in Volker und Markus Schecke and Eifert (80) that ‘the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information [my emphasis] relating to an identified or identifiable individual … and the limitations which may lawfully be imposed on the right to protection of personal data correspond to those tolerated in relation to Article 8 [ECHR]’.
118. I conclude on the basis of Volker und Markus Schecke and Eifert that the protection of private life under the Charter, with regard to the processing of personal data, covers all information relating to an individual irrespective of whether he acts in a purely private sphere or as an economic operator or, for example, as a politician. In view of the the wide notions of personal data and its processing in EU law, it seems to follow from abovementioned case-law that any act of communication relying on automatic means such as by means of telecommunications, e-mail or social media concerning a natural person constitutes as such a putative interference of that fundamental right that requires justification. (81)
119. I have concluded in paragraph 75 that an internet search engine service provider is engaged in processing of personal data displayed on third-party source web pages. Hence it follows from the Court’s judgment in Volker und Markus Schecke and Eifert that, independently of how his role is classified under the Directive, there is interference with the Article 7 Charter right to privacy of the concerned data subjects. According to the ECHR and the Charter any interference to protected rights must be based on law and be necessary in a democratic society. In the present case we are not faced with interference by public authorities in need of justification but of the question of the extent that interference by private subjects can be tolerated. The limits to this are set out in the Directive, and they are thus based on law, as required by the ECHR and the Charter. Hence, when the Directive is interpreted, the exercise precisely concerns the interpretation of the limits set to data processing by private subjects in light of the Charter. From this follows the question of whether there is a positive obligation on the EU and the Member States to enforce, as against internet search engine service providers, which are private subjects, a right to be forgotten. (82) This in turn leads to questions of justification for interference in Article 7 and 8 of the Charter, and the relationship with the competing rights of freedom of expression and information, and the right to conduct a business.
D – Rights of freedom of expression and information, and the right to conduct a business
120. The present case concerns, from many angles, freedom of expression and information enshrined in Article 11 of the Charter, which corresponds to Article 10 ECHR. Article 11(1) of the Charter states that ‘[e]veryone 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.’ (83)
121. The internet users’ right to seek and receive information made available on the internet is protected by Article 11 of the Charter. (84) This concerns both information on the source web pages and the information provided by internet search engines. As I have already mentioned, the internet has revolutionalised access to and dissemination of all kinds of information and enabled new forms of communication and social interaction between individuals. In my opinion the fundamental right to information merits particular protection in EU law, especially in view of the ever-growing tendency of authoritarian regimes elsewhere to limit access to the internet or to censure content made accessible by it. (85)
122. Publishers of web pages equally enjoy protection under Article 11 of the Charter. Making content available on the internet counts as such as use of freedom of expression, (86) even more so when the publisher has linked his page to other pages and has not limited its indexing or archiving by search engines, thereby indicating his wish for wide dissemination of content. Web publication is a means for individuals to participate in debate or disseminate their own content or content uploaded by others on internet. (87)
123. In particular, the present preliminary reference concerns personal data published in the historical archives of a newspaper. In Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), the European Court of Human Rights observed that internet archives make a substantial contribution to preserving and making available news and information: ‘Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. … However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring accuracy [my emphasis] of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material.’ (88)
124. Commercial internet search engine service providers offer their information location services in the context of business activity aiming at revenue from keyword advertising. This makes it a business, the freedom of which is recognised under Article 16 of the Charter in accordance with EU law and national law. (89)
125. Moreover, it needs to be recalled that none of the fundamental rights at stake in this case are absolute. They may be limited provided that there is a justification acceptable in view of the conditions set out in Article 52(1) of the Charter. (90)
E – Can a data subject’s ‘right to be forgotten’ be derived from Article 7 of the Charter?
126. Finally, it is necessary to ponder whether interpretation of Articles 12(b) and 14(a) of the Directive in light of the Charter, and more particularly of Article 7 thereof, could lead to the recognition of a ‘right to be forgotten’ in the sense referred to by the national court. At the outset such a finding would not be against Article 51(2) of the Charter because it would concern precision of the scope of the data subject’s right of access and right to object already recognised by the Directive, not the creation of new rights or widening the scope of EU law.
127. The European Court of Human Rights held in the Aleksey Ovchinnikov case (91) that ‘in certain circumstances a restriction on reproducing information that has already entered the public domain may be justified, for example to prevent further airing of the details of an individual’s private life which do not come within the scope of any political or public debate on a matter of general importance’. The fundamental right to protection of private life can thus in principle be invoked even if the information concerned is already in the public domain.
128. However, a data subject’s right to protection of his private life must be balanced with other fundamental rights, especially with freedom of expression and freedom of information.
129. A newspaper publisher’s freedom of information protects its right to digitally republish its printed newspapers on the internet. In my opinion the authorities, including data protection authorities, cannot censure such republishing. The Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) judgment of the European Court of Human Rights (92) demonstrates that the liability of the publisher regarding accuracy of historical publications may be more stringent than those of current news, and may require the use of appropriate caveats supplementing the contested content. However, in my opinion there could be no justification for requiring digital republishing of an issue of a newspaper with content different from the originally published printed version. That would amount to falsification of history.
130. The data protection problem at the heart of the present litigation only appears if an internet user types the data subject’s name and surnames into the search engine, thereby being given a link to the newspaper’s web pages with the contested announcements. In such a situation the internet user is actively using his right to receive information concerning the data subject from public sources for reasons known only to him. (93)
131. In contemporary information society, the right to search information published on the internet by means of search engines is one of the most important ways to exercise that fundamental right. This right undoubtedly covers the right to seek information relating to other individuals that is, in principle, protected by the right to private life such as information on the internet relating to an indivdual’s activities as a businessman or politician. An internet user’s right to information would be compromised if his search for information concerning an individual did not generate search results providing a truthful reflection of the relevant web pages but a ‘bowdlerised’ (94) version thereof.
132. An internet search engine service provider lawfully exercises both his freedom to conduct business and freedom of expression when he makes available internet information location tools relying on a search engine.
133. The particularly complex and difficult constellation of fundamental rights that this case presents prevents justification for reinforcing the data subjects’ legal position under the Directive, and imbuing it with a right to be forgotten. This would entail sacrificing pivotal rights such as freedom of expression and information. I would also discourage the Court from concluding that these conflicting interests could satisfactorily be balanced in individual cases on a case-by-case basis, with the judgment to be left to the internet search engine service provider. Such ‘notice and take down procedures’, if required by the Court, are likely either to lead to the automatic withdrawal of links to any objected contents or to an unmanageable number of requests handled by the most popular and important internet search engine service providers. (95) In this context it is necessary to recall that ‘notice and take down procedures’ that appear in the ecommerce Directive 2000/31 relate to unlawful content, but in the context of the case at hand we are faced with a request for suppressing legitimate and legal information that has entered the public sphere.
134. In particular, internet search engine service providers should not be saddled with such an obligation. This would entail an interference with the freedom of expression of the publisher of the web page, who would not enjoy adequate legal protection in such a situation, any unregulated ‘notice and take down procedure’ being a private matter between the data subject and the search engine service provider. (96) It would amount to the censuring of his published content by a private party. (97) It is a completely different thing that the States have positive obligations to provide an effective remedy against the publisher infringing the right to private life, which in the context of internet would concern the publisher of the web page.
135. As the Article 29 Working Party has observed, it is possible that the secondary liability of the search engine service providers under national law may lead to duties amounting to blocking access to third-party websites with illegal contents such as web pages infringing IP rights, or displaying libellous or criminal information. (98)
136. In contrast any generalised right to be forgotten cannot be invoked against them on the basis of the Directive even when it is interpreted in harmony with the Charter.
137. For these reasons I propose that the Court should answer the third preliminary question to the effect that the rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for by Article 14(a), of the Directive, do not extend to such a right to be forgotten as described in the preliminary reference.
VIII – Conclusion
138. In the light of the above considerations, I am of the opinion that the Court should reply as follows to the questions referred by the Audiencia Nacional:
1. Processing of personal data is carried out in the context of the activities of an ‘establishment’ of the controller within the meaning of Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data when the undertaking providing the internet search engine sets up in a Member State, for the purposes of promoting and selling advertising space on the search engine, an office or subsidiary which orientates its activity towards the inhabitants of that State.
2. An internet search engine service provider, whose search engine locates information published or included on the internet by third parties, indexes it automatically, stores it temporarily and finally makes it available to internet users according to a particular order of preference, ‘processes’ personal data in the sense of Article 2(b) of Directive 95/46 when that information contains personal data.
However, the internet search engine service provider cannot be considered as ‘controller’ of the processing of such personal data in the sense of Article 2(d) of Directive 95/46, with the exception of the contents of the index of its search engine, provided that the service provider does not index or archive personal data against the instructions or requests of the publisher of the web page.
3. The rights to erasure and blocking of data, provided for in Article 12(b), and the right to object, provided for in Article 14(a), of Directive 95/46, do not confer on the data subject a right to address himself to a search engine service provider in order to prevent indexing of the information relating to him personally, published legally on third parties’ web pages, invoking his wish that such information should not be known to internet users when he considers that it might be prejudicial to him or he wishes it to be consigned to oblivion.
1 – Original language: English.
2 – Harvard Law Review, Vol. IV, No 5, 15 December 1890,.
3 – In actual fact the ‘internet’ comprises two main services, namely the World Wide Web and email services. While the internet, as a network of interconnected computers, has existed in various forms for some time, commencing with the Arpanet (United States), the freely accessible open network with www addresses and common code structure only started in the early 1990s. It seems that the historically correct term would be World Wide Web. However, given the current usage and terminological choices made in Court’s case-law, in the following the word ‘internet’ is primarily used to refer to the World Wide Web part of the network.
4 – The location of web pages is identified with an individual address, the ‘URL’ (Uniform Resource Locator), a system created in 1994. A web page can be accessed by typing its URL in the web browser, directly or with the help of a domain name. The web pages must be coded with some markup language. HyperText Markup Language (HTML) is the main markup language for creating web pages and other information that can be displayed in a web browser.
5 – The scope of the three issues is illustrated by the following information (although no exact figures are available). First, it has been estimated that there could be more than 600 million websites on the internet. On these websites there appears to be more than 40 billion web pages. Second, with regard to the search engines, their number is much more limited: it appears that there are less than 100 important search engines, and currently Google seems to have a huge share in many markets. It has been said that success of Google’s search engine is based on very powerful web crawlers, efficient indexing systems and technology that allows the search results to be sorted by their relevance to the user (including the patended PageRank algorithm), see López-Tarruella, A., ‘Introduction: Google Pushing the Boundaries of Law’, Google and the Law. Empirical Approaches to Legal Aspects of Knowledge-Economy Business Models, Ed. López-Tarruella, A., T.M.C. Asser Press, The Hague, 2012, pp. 1-8, p. 2. Third, more than three quarters of people in Europe use the internet and in so far that they use the search engines, their personal data, as internet search engine users, may be gathered and processed by the internet search engine used.
6 – Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).
7 – See, in general, Article 29 Working Party, Opinion 1/2008 on data protection issues related to search engines (WP 148). Google’s privacy policy, as regards the users of its internet search engine, is under scrutiny by the data protection authorities of the Member States. The action is lead by the French Data Protection Authority (the CNIL). For recent developments, see letter dated 16 October 2012 of Article 29 Working Party to Google, available on website mentioned in footnote 22 below.
8 – Point 19 below.
9 – In the following, ‘internet search engine’ refers to the combination of software and equipment enabling the feature of searching text and audiovisual content on the internet. Specific issues relating to search engines operating within a defined internet domain (or website) such as http://curia.europa.eu are not discussed in this opinion. The economic operator providing for access to a search engine is referred to as the ‘internet search engine service provider’. In the present case Google Inc. appears to be the service provider providing access to Google search engine as well as many additional search functions such as maps.google.com and news.google.com.
10 – Case C-101/01 Lindqvist [2003] ECR I-12971.
11 – Joined Cases C-465/00, C-138/01 and C-139/01 Österreichischer Rundfunk and Others [2003] ECR I-4989.
12 – Case C-73/07 Satakunnan Markkinapörssi and Satamedia [2008] ECR I-9831.
13 – Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-0000, BAILII: [2010] EUECJ C-92/09.
14 – Joined Cases C-236/08 to C-238/08 Google France and Google [2010] ECR I-2417; Case C-558/08 Portakabin [2010] ECR I-6963; Case C-324/09 L’Oréal and Others [2011] ECR I-0000, BAILII: [2011] EUECJ C-324/09 ; Case C-323/09 Interflora and Interflora British Unit [2011] ECR I-0000, BAILII: [2011] EUECJ C-323/09; and Case C-523/10 Wintersteiger [2012] ECR I-0000, BAILII: ([2012] EUECJ C-523/10.
15 – Proposal for a Regulation of the European Parliament and of the Council on the protection of individuals with regards to the processing of personal data and on the free movement of such data (General Data Protection Regulation). COM(2012)11 final.
16 – BOE No 298, 14 December 1999, p. 43088.
17 – According to its recital 11, the ‘principles of the protection of the rights and freedoms of individuals, notably the right to privacy, which are contained in this Directive, give substance to and amplify those contained in the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data’.
18– Article 29 Working Party, Opinion 1/2010 on the concepts of ‘controller’ and ‘processor’ (WP 169), pp. 3-4.
19 – For example, Joined Cases C-509/09 and C-161/10 eDate Advertising and Martinez [2011] ECR I-0000, BAILII: [2011] EUECJ C-161/10, paragraph 45.
20 – A newspaper normally includes personal data such as names of natural persons. This personal data is processed when it is consulted by automatic means. This processing is within the scope of application of the Directive unless it is exercised by a natural person in the course of a purely personal or household activity. See Article 2(a) and (b) and Article 3(2) of the Directive. Moreover, reading a paper document or displaying images including personal data also amounts to its processing. See Dammann, U. and Simitis, S., EG-Datenschutzrichtlinie, Nomos Verlagsgesellschaft, Baden-Baden, 1997, p. 110.
21 – Lindqvist, points 67–70, as regards the interpretation of Article 25 of the Directive.
22 – The opinions are available at http://ec.europa.eu/justice/data-protection/index_en.htm.
23 – Internet search engines develop constantly and the purpose here is only to give an overview of the salient features that are currently relevant.
24 – Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ 2000 L 178, p. 1).
25 – See recital 18 in the preamble to and Article 2(a) of ecommerce Directive 2000/31, read together with Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18).
26 – Lindqvist, paragraphs 25-27.
27 – A typical current exclusion code (or robot exclusion protocol) is called ‘robots.txt’; see http://en.wikipedia.org/wiki/Robots.txt or http://www.robotstxt.org/.
28 – Exclusion codes do not, however, technically prevent indexing or displaing, but the service provider running a search engine can decide to ignore them. Major internet search engine service providers, Google included, claim that they comply with such codes included in the source web page. See the Article 29 Working Party, Opinion 1/2008, p. 14.
29 – See the judgment of the European Court of Human Rights, K.U. v. Finland, no. 2872/02, § 43 and § 48 EHRR 52, where the Court referred to the existence of positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. In K.U. v. Finland the State had a positive obligation to ensure that an effective remedy was available against the publisher.
30 – However, the internet is not a single enormous data bank established by the ‘Big Brother’ but a decentralised system of information originating from innumerable independent sources where accessibility and dissemination of information rely on intermediary services having as such nothing to do with the contents.
31 – See, in this respect, my opinion in L’Oréal and Others, points 54 et seq.
32 – This corresponds to the third situation mentioned in paragraph 3 above.
33 – For an example of a keywords advertising system (Google’s AdWords) see Google France and Google, paragraphs 22 and 23; Case C-278/08 BergSpechte [2010] ECR I-2517, paragraphs 5-7; Portakabin, paragraphs 8-10; and Interflora and Interflora British Unit, paragraphs 9-13.
34 – Case C-400/10 PPU McB. [2010] ECR I-8965, paragraphs 51 and 59; Case C-256/11 Dereci and Others [2011] ECR I-0000, BAILII: [2011] EUECJ C-256/11, paragraphs 71 and 72; Case C-40/11 Iida [2012] ECR I-0000, BAILII: [2012] EUECJ C-40/11, paragraph 78; and Case C-617/10 Åkerberg Fransson [2013] ECR I-0000, BAILII: [2013] EUECJ C-617/10, paragraph 23.
35 – For example in McB. the Court resisted an interpretation, which was sought on the basis of Article 7 of the Charter, of ‘rights of custody’ in Article 2(9) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1) that would have enlarged its meaning. That said, of course, if it is impossible to interpret an EU legislative provision in conformity with fundamental rights protected by EU law, that provision must be declared invalid. See Case C-236/09 Association belge des Consommateurs Test-Achats and Others [2011] ECR I-773, paragraphs 30-34.
36 – Article 29 Working Party, Opinion 8/2010 on applicable law (WP 179), p. 8.
37 – Article 29 Working Party, Opinion 8/2010, pp. 24 and 31.
38 – Article 3(2)(a) of the Commission Proposal.
39 – L’Oréal and Others and the ecommerce Directive 2000/31.
40 – Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), Joined Cases C-585/08 and C-144/09 Pammer and Hotel Alpenhof [2010] ECR I-12527, and Wintersteiger. See also my Opinion in Case C-170/12 Pinckney, pending.
41 – Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10) and Case C-5/11 Donner [2012] ECR I-0000, BAILII: [2012] EUECJ C-5/11
42 – The reference does not specify what is meant by ‘centre of gravity’, but this expression was used by Advocate General Cruz Villalón in his Opinion in eDate Advertising and Martinez, points 32 and 55.
43 – Article 29 Working Party, Opinion 8/2010, pp. 8 and 9. The Working Party also points out that the word ‘equipment’ used in the English version of the Directive is too narrow because the other language versions speak about ‘means’ which also covers non-material devices such as cookies (pp. 20 and 21).
44 – See, in particular, Article 29 Working Party, Opinion 8/2010, p. 19 where it is submitted that Article 4(1)(c) of the Directive should apply, despite its wording, where the controller has establishments in the EU but their activities are unrelated to the concerned processing of personal data.
45 – See Google France and Google, paragraph 23.
46 – See Google France and Google, paragraph 25, and Article 29 Working Party, Opinion 1/2008, pp. 5-6. It is easy to verify that the use of the same keywords on different national Googledomains may trigger the display of different search results and advertisements.
47 – Article 29 Working Party, Opinion 1/2008, p. 10.
48 – See Article 2(a) of the Directive, according to which personal data means ‘any information relating to an identified or identifiable natural person’. A wide range of examples is given by Article 29 Working Party, in its Opinion 4/2007 on the concept of personal data (WP 136). The Court confirmed the wide interpretation in Lindqvist, paragraphs 24-27. See also Österreichischer Rundfunk and Other, paragraph 64; Satakunnan Markkinapörssi and Satamedia, paragraphs 35-37; Case C-524/06 Huber [2008] ECR I-9705, paragraph 43; Case C-553/07 Rijkeboer [2009] ECR I-0000, BAILII: [2009] EUECJ C-553/07, paragraph 62; Case C-461/10 Bonnier Audio and Others [2012] ECR I-0000, BAILII: [2012] EUECJ C-461/10, paragraph 93; and Volker und Markus Schecke and Eifert, paragraphs 23, 55 and 56.
49 – Article 29 Working Party recalls that ‘it is not necessary for information to be considered as personal data that it is contained in a structured database or file. Also information contained in free text in an electronic document may qualify as personal data …’, see Opinion 4/2007, p. 8.
50 – There are search engines or search engine features specially targeting personal data, which, as such, can be identifiable because of their form (for example, social security numbers) or composition (strings of signs corresponding to names and surnames). See the Article 29 Working Party, Opinion 1/2008, p. 14. Such search engines may raise particular data protection issues that fall outside of the scope of this Opinion.
51 – However, so-called orphan pages without any links to other web pages remain inaccessible for the search engine.
52 – Web pages found by the crawler are stored in Google’s index database which is sorted alphabetically by search term, with each index entry storing a list of documents in which the term appears and the location within the text where it occurs. Certain words like articles, pronouns and common adverbs or certain single digits and single letters are not indexed. See http://www.googleguide.com/google_works.html.
53 – These copies (so-called ‘snapshots’) of web pages stored in Google’s cache only consist of HTML code, and not images which must be loaded from the original location. See Peguera, M., ‘Copyright Issues Regarding Google Images and Google Cache’, Google and the Law, pp. 169–202, at p. 174.
54 – Internet search engine service providers usually allow the webmasters to ask for the updating of the cache copy of the web page. Instructions on how to do this can be found on Google’s Webmaster Tools page.
55 – It seems language versions of the Directive, other than the English, such as the French, German, Spanish, Swedish and Dutch, speak of an entity being ‘responsible’ for data processing, not of a controller. Some language versions, such as the Finnish and Polish use more neutral terms (in Finnish, ‘rekisterinpitäjä’; in Polish ‘administrator danych’).
56 – Lindqvist, paragraph 68.
57– Article 29 Working Party, Opinion 1/2008, p.14, footnote 17. According to the Opinion, the role of users would typically be outside the scope of the Data Protection Directive as ‘purely personal activity’. In my opinion this assumption is not tenable. Typically internet users also use search engines in activities that are not purely personal, such as use for purposes relating to work, studies, business or third-sector activities.
58 – The Article 29 Working Party gives in its Opinion 4/2007 numerous examples of the concept of and processing of personal data, including the controller, and it seems to me that in all of the examples presented this condition is fulfilled.
59 – Article 29 Working Party, Opinion 1/2010, p. 9.
60 – Ibid., p. 14.
61 – Dammann and Simitis (p. 120) observe that processing by automatic means must not only concern the support where the data is recorded (Datenträger), but also relate to the data in their semantic or substantive dimension. In my opinion it is crucial that personal data is according to the directive ‘information’, i.e. semantically relevant content.
62 – Article 29 Working Party, Opinion 1/2008, p. 14.
63 – Lindqvist, paragraph 27.
64 – Satakunnan Markkinapörssi and Satamedia, paragraph 37.
65 – Article 29 Working Party, Opinion 1/2010, pp. 4 and 9.
66 – Article 29 Working Party, Opinion 1/2008, p. 14.
67 – Article 29 Working Party, Opinion 1/2008, p. 14, however adds that the extent to which it has an obligation to remove or block personal data may depend on the general tort law and liability regulations of the particular Member State. In some Member States national legislation provides ‘notice and take down’ procedures that the internet search engine service provider must follow in order to avoid liability.
68 – According to one author such filtering is done by Google in nearly all countries, for example in relation to infringements of intellectual property rights. Moreover, in the United States information critical to scientology has been filtered. In France and Germany Google is filtering search results relating to ‘Nazi memorabilia, Holocaust deniers, white supremacist and sites that make propaganda against the democractic constitutional order’. For further examples see Friedmann, D., ‘Paradoxes, Google and China: How Censorship can Harm and Intellectual Property can Harness Innovation’, Google and the Law,,p p. 303-327,at p. 307.
69 – See paragraph 41 above.
70 – First Report on the application of [ecommerce Directive 2000/31], COM(2003)702 final, p. 13, footnote 69 and Article 29 Working Party, Opinion 1/2008, p. 13, footnote 16.
71 – See paragraph 41 above.
72 – The capacity of a personal name to identify a natural person is context dependent. A common name may not individualise a person on the internet but surely, for example, within a school class. In computerised processing of personal data a person is usually assigned to a unique identifier in order to avoid confusion between two persons. Typical examples of such identifiers are social security numbers. See in this regard Article 29 Working Party, Opinion 4/2007, p. 13 and Opinion 1/2008, p. 9, footnote 11.
73 – It is interesting to note, however, that, in the context of data stored by government agencies, the European Court of Human Rights has held that ‘domestic law should notably ensure that such data are relevant and not excessive in relation to the purpose for which they are stored; and preserved in a from which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored’ (see S. and Marper v. United Kingdom, nos. 30562/04 and 30566/04, § 103, ECHR 2008, BAILII: [2008] ECHR 1581; see also Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 90, ECHR 2006-VII, BAILII: [2006] ECHR 597 ). However, the European Court of Human Rights has equally recognised, in the context of the Article 10 ECHR, right to freedom of expression, ‘the substantial contribution made by internet archives to preserving and making available news and information’ (Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 45, ECHR 2009, BAILII: [2009] ECHR 451).
74 – See paragraph 41 above.
75 – Cf. Article 14 of the ecommerce Directive.
76– Article 29 Working Party, Opinion 1/2008, p. 14.
77 – This was the approach developed by the Court in McB, paragraphs 44 and 49..
78 – Joined Cases C-468/10 and C-469/10 ASNEF and FECEMD [2011] ECR I-0000, BAILII: [2011] EUECJ C-468/10, paragraphs 44–45. The European Court of Human Rights has noted that publication of personal data elsewhere ends the overriding interest relating to protection of confidentiality, see Aleksey Ovchinnikov v. Russia, no. 24061/04, § 49, 16 December 2010,BAILII: [2010] ECHR 2033.
79 – European Court of Human Rights: Niemietz v. Germany, 16 December 1992, BAILII: [1992] ECHR 80, § 29, Series A no. 251-B; Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II, BAILII: [2000] ECHR 88; and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000 V, BAILII: [2000] ECHR 192
80 – Paragraph 52 of the judgment.
81 – In contrast, the European Court of Human Rights has declined from giving a definition of private life in positive terms. According to that Court, the notion of private life is a broad one, which is not susceptible to exhaustive definition (see Costello-Roberts v. the United Kingdom, 25 March 1993, BAILII: [1993] ECHR 16, § 36, Series A no. 247-C).
82 – On positive obligations on the State to act to protect privacy, when it is being breached by private sector actors, and the need to balance any such obligation on the right to freedom of expression of the latter, see for example Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI, BAILII: [2004] ECHR 294, and Ageyevy v. Russia, no. 7075/10, 18 April 2013, BAILII: [2013] ECHR 346.
83 – European Court of Human Rights: Handyside v. the United Kingdom, 7 December 1976, BAILII: [1976] ECHR 5, § 49, Series A no. 24; Müller and Others v. Switzerland, 24 May 1988, BAILII: [1988] ECHR 5, § 33, Series A no. 133; Vogt v. Germany, 26 September 1995, BAILII: [1995] ECHR 29, § 52, Series A no. 323; and Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008, BAILII: [2008] ECHR 144. See also Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 39 and Opinion of Advocate General Kokott in Satakunnan Markkinapörssi and Satamedia, point 38.
84 – Case C-360/10 SABAM v Netlog [2012] ECR I-0000, BAILII: [2012] EUECJ C-360/10 , paragraph 48.
85 – United Nations, Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue (Document A/HRC/17/27), of 16 May 2011.
86 – Satakunnan Markkinapörssi and Satamedia, paragraph 60.
87 – It should be recalled here that the journalism exception in Article 9 of the Directive applies ‘not only to media undertakings but also to every person engaged in journalism’, see Satakunnan Markkinapörssi and Satamedia, paragraph 58.
88 – European Court of Human Rights: Times Newspapers Ltd (nos. 1 and 2), § 45.
89 – Case C-70/10 Scarlet Extended [2011] ECR I-0000, BAILII: [2011] EUECJ C-70/10 , paragraph 46, and SABAM v Netlog, paragraph 44
90 – See also Joined Cases C-317/08 to C-320/08 Alassini and Others [2010] ECR I-221, paragraph 63, where it was held that ‘it is settled case-law that fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed (see, to that effect, Case C-28/05 Doktor and Others [2006] ECR I-5431, paragraph 75 and the case-law cited, and the judgment of the European Court of Human Rights in Fogarty v. the United Kingdom, no. 37112/97, BAILII: [2001] ECHR 762, § 33, ECHR 2001-XI (extracts))’.
91 – Paragraph 50 of the judgment.
92 – Cited above.
93 – On the right to receive information, see European Court of Human Rights, Observer and Guardian v. the United Kingdom, 26 November 1991, BAILII: 1991] ECHR 49 , § 60, Series A no. 216, and Timpul Info-Magazin and Anghel v. Moldova, no. 42864/05, BAILII: [2007] ECHR 976 , § 34, 27 November 2007.
94 – Thomas Bowdler (1754–1825) published a sanitised version of William Shakespeare’s works which intended to be more appropriate for 19th century women and children than the original.
95 – SABAM v Netlog, paragraphs 45-47.
96 – My Opinion in L’Oréal and Others, point 155.
97 – SABAM v Netlog, paragraphs 48 and 50.
98 – Article 29 Working Party, Opinion 1/2008,p p. 14-15.
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DELFI AS v. ESTONIA – 64569/09
[2015] ECHR 586 (2016) 62 EHRR 6, 62 EHRR 6, [2015] ECHR 586, [2015] EMLR 26, 39 BHRC 151
PROCEDURE
1. The case originated in an application (no. 64569/09) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Delfi AS, a public limited liability company registered in Estonia (“the applicant company”), on 4 December 2009.
2. The applicant company was represented by Mr V. Otsmann and Ms K. Turk, lawyers practising in Tallinn. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
3. The applicant company alleged that its freedom of expression had been violated, in breach of Article 10 of the Convention, by the fact that it had been held liable for the third-party comments posted on its Internet news portal.
4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 1 February 2011 the Court changed the composition of its Sections (Rule 25 § 1) and the application was assigned to the newly composed First Section. On 10 October 2013 a Chamber composed of Isabelle Berro-Lefèvre, President, Elisabeth Steiner, Khanlar Hajiyev, Mirjana Lazarova Trajkovska, Julia Laffranque, Ksenija Turkovic, Dmitry Dedov, judges, and also of André Wampach, Deputy Section Registrar, delivered its judgment. It decided unanimously to declare the application admissible and held that there had been no violation of Article 10 of the Convention.
5. On 8 January 2014 the applicant company requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention, and the panel of the Grand Chamber accepted the request on 17 February 2014.
6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24.
7. The applicant company and the Government each filed further written observations (Rule 59 § 1) on the merits.
8. In addition, third-party comments were received from the following organisations, which had been granted leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2): the Helsinki Foundation for Human Rights; Article 19; Access; Media Legal Defence Initiative (MLDI), acting together with its twenty-eight associated organisations; and the European Digital Media Association (EDiMA), the Computer and Communications Industry Association (CCIA Europe) and the pan-European association of European Internet Services Providers Associations (EuroISPA), acting jointly.
9. A hearing took place in public in the Human Rights Building, Strasbourg, on 9 July 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Ms M. Kuurberg, Agent,
Ms M. Kaur,
Ms K. Mägi, Advisers;
(b) for the applicant company
Mr V. Otsmann,
Ms K. Turk, Counsel.
The Court heard addresses by Mr Otsmann, Ms Turk and Ms Kuurberg as well as their replies to questions put by Judges Ziemele, Spano, Raimondi, Villiger and Bianku.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
10. The applicant company is a public limited liability company (aktsiaselts), registered in Estonia.
A. Background to the case
11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia and also operates in Latvia and Lithuania.
12. At the material time, at the end of the body of the news articles there were the words “add your comment” and fields for comments, the commenter’s name and his or her e-mail address (optional). Below these fields there were buttons labelled “publish the comment” and “read comments”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “read comments” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers’ comments daily, the majority posted under pseudonyms.
13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (an Estonian word for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, there was a system of automatic deletion of comments that included certain stems of obscene words. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately.
14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi’sInternet site there were “Rules of comment” which included the following:
“The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment …
Delfi prohibits comments whose content does not comply with good practice.
These are comments that:
– contain threats;
– contain insults;
– incite hostility and violence;
– incite illegal activities …
– contain off-topic links, spam or advertisements;
– are without substance and/or off-topic;
– contain obscene expressions and vulgarities …
Delfi has the right to remove such comments and restrict their authors’ access to the writing of comments …”
The functioning of the notice-and-take-down system was also explained in the “Rules of comment”.
15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure the freedom of expression as well as the protection of everyone’s honour and good name, including sections 1043 and 1046 of the Obligations Act (Võlaõigusseadus).
B. Article and comments published on the Internet news portal
16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “SLK Destroyed Planned Ice Road”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “SLK” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. L. was a member of the supervisory board of SLK and the company’s sole or majority shareholder at the material time.
17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed against L.
18. On 9 March 2006 L.’s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments:
“1. (1) there are currents in [V]äinameri
(2) open water is closer to the places you referred to, and the ice is thinner.
Proposal – let’s do as in 1905, let’s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag
2. bloody shitheads…
they bathe in money anyway thanks to that monopoly and State subsidies and have now started to fear that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew!
3. good that [La.’s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven!
4. [little L.] go and drown yourself
5. aha… [I] hardly believe that that happened by accident… assholes fck
6. rascal!!! [in Russian]
7. What are you whining for, knock this bastard down once and for all [.] In future the other ones … will know what they risk, even they will only have one little life.
8. … is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn’t he.
9. “a good man lives a long time, a shitty man a day or two”
10. If there was an iceroad, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port … instead, fcking monkey, I will cross [the strait] anyway and if I drown, it’s your fault
11. and can’t anyone defy these shits?
12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope.
13. wonder whether [L.] won’t be knocked down in Saaremaa? screwing one’s own folk like that.
14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this.
Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the state is powerless towards them – it is really them who govern the state), because they only live for today. Tomorrow, the flood.
15. this [V.] will one day get hit with a cake by me.
damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that … a pig is going to be slaughtered. no way
16. bastards!!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!!
17. Estonian state, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas … and this cannot at all be compared to a ram’s Michaelmas. [1] Actually sorry for [L.] – a human, after all… 😀 😀 😀
18. … if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed … will he [then] dare to act like a pig for the third time? 🙂
19. fucking bastard, that [L.]… could have gone home with my baby soon … anyway his company cannot guarantee a normal ferry service and the prices are such that … real creep … a question arises whose pockets and mouths he has filled up with money so that he’s acting like a pig from year to year
20. you can’t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the state and [L.] do not care about the people’s opinion) … just for fun, with no greed for money – I pee into [L.’s] ear and then I also shit onto his head. :)”
19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company.
20. On 23 March 2006 the applicant company responded to the request from L.’s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages.
C. Civil proceedings against the applicant company
21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company.
22. At the hearing of 28 May 2007 the representatives of the applicant company submitted, inter alia, that in cases like that of the “Bronze Night” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, also on its own initiative.
23. By a judgment of 25 June 2007 L.’s claim was dismissed. The County Court found that the applicant company’s liability was excluded under the Information Society Services Act (Infoühiskonna teenuse seadus), which was based on the Directive on Electronic Commerce (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market). The court considered that the comment environment in the applicant company’s news portal was to be distinguished from the portal’s journalistic area. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them.
24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company’s liability was excluded under the Information Society Services Act. The County Court’s judgment was quashed and the case was referred back to the first-instance court for fresh consideration.
25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company.
26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal’s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had placed a note on its Internet site to the effect that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments.
27. The County Court found that the news article itself published in the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory and impaired L.’s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L.’s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage.
28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court’s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments from the portal. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims.
29. The Court of Appeal rejected the applicant company’s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to add comments. Thus, the applicant company was a provider of content services rather than of technical services.
30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal’s judgment in substance, but partly modified its reasoning.
31. The Supreme Court held as follows:
“10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal’s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure.
11. The parties do not dispute the following circumstances:
• on 24 January 2006 the defendant’s Internet portal ‘Delfi’ published an article entitled ‘SLK Destroyed Planned Ice Road’;
• the defendant provided visitors to the Internet portal with the opportunity to comment on articles;
• of the comments published [avaldatud] [2] on the aforementioned article, 20 have contents that are derogatory towards the plaintiff [L.];
• the defendant removed the derogatory comments after the plaintiff’s letter of 9 March 2006.
12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the contents of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful contents.
13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act].
According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to the provision of the ISSA referred to, ‘information society services’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service.
Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (1) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; (2) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider’s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the contents of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information.
Since the Information Society Services Act is based on Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on Electronic Commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by recital 42 of the preamble to the Directive. According to this recital, the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘content services’ who have control over the contents of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive.
The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments [hinnangud] and opinions (comments). In the comment environment, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant’s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the writer of the comments does not mean that the defendant has no control over the comment environment. The defendant enacts the rules for the comment environment and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant’s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not prompt the conclusion that the publishing of comments is not under the defendant’s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comment environment, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case.
14. There is no legal dispute over the fact that the defendant is the publisher of an article entitled ‘SLK Destroyed Planned Ice Road’, published on the Delfi Internet portal on 24 January 2006. The County Court found that the defendant too must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the writers of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the writers of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant.
The Chamber has explained the definitions of disclosure and discloser in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ajakirjanduslik tegevus]. At the same time, because of the nature of Internet media [internetiajakirjandus], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [trükiajakirjanduse väljaanne]. While the publisher [väljaandja] [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs.
In cases concerning a value judgment [väärtushinnang] that prejudices and denigrates a person’s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning … Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [hinnangud] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public).
15. In reply to the allegations in the defendant’s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following.
The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone’s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person’s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person’s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person’s honour and good name.
In the interests of the protection of a person’s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff’s honour was not justified; it was therefore unlawful as there was no discussion of the topic in the comments but the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Law of Obligations is interpreted in conformity with the Constitution, injuring a person’s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats.
The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the writers of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1)(4) of the Obligations Act).
16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments … are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant’s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless.
On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful contents. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person’s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant’s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [süü] (section 1050(1) of the Obligations Act).”
D. Subsequent developments
32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the rules of commenting. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the rules of commenting was monitored as well. According to the information published, the number of comments posted by Delfi’s readers in August 2009 had been 190,000. Delfi’s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The share of defamatory comments had been less than 0.5% of the total number of comments.
II. RELEVANT DOMESTIC LAW AND PRACTICE
33. The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides:
Article 17
“No one’s honour or good name shall be defamed.”
Article 19
“(1) Everyone has the right to free self-realisation.
(2) Everyone shall honour and consider the rights and freedoms of others, and shall observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties.”
Article 45
“(1) Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and the good name of others. This right may also be restricted by law for State and local government public servants, to protect a State or business secret or information received in confidence which has become known to them by reason of their office, and the family and private life of others, as well as in the interests of justice.
(2) There is to be no censorship.”
34. Section 138 of the Civil Code (General Principles) Act (Tsiviilseadustiku üldosa seadus) provides that rights are to be exercised and obligations performed in good faith. A right must not be exercised in an unlawful manner or with the aim of causing damage to another person.
35. Subsection 2 of section 134 of the Obligations Act (Võlaõigusseadus) provides:
“In the case of an obligation to compensate for damage arising from … a breach of a personality right, in particular from defamation, the obligated person shall compensate the aggrieved person for non-pecuniary damage only if this is justified by the gravity of the breach, in particular by physical or emotional distress.”
36. Section 1043 of the Obligations Act provides that a person (tortfeasor) who unlawfully causes damage to another person (victim) must compensate for the damage if the tortfeasor is culpable (süüdi) of causing the damage or is liable for causing the damage pursuant to the law.
37. Section 1045 of the Obligations Act provides that the causing of damage is unlawful if, inter alia, it results from a breach of a personality right of the victim.
38. The Obligations Act further provides:
Section 1046 – Unlawfulness of damage to personality rights
“(1) Injuring a person’s honour, inter alia by passing undue value judgment, unjustified use of a person’s name or image, or breaching the inviolability of a person’s private life or another personality right, is unlawful unless otherwise provided by law. In establishing such unlawfulness, the type of the breach, the reason and motive for the breach and the gravity of the breach relative to the aim pursued thereby shall be taken into consideration.
(2) The breach of a personality right is not unlawful if the breach is justified in view of other legal rights protected by law and the rights of third parties or public interests. In such cases, unlawfulness shall be established on the basis of a comparative assessment of the different legal rights and interests protected by law.”
Section 1047 – Unlawfulness of disclosure of incorrect information
“(1) A breach of personality rights or interference with the economic or professional activities of a person by way of disclosure [avaldamine] of incorrect information, or by way of incomplete or misleading disclosure of information concerning the person or the person’s activities, is unlawful unless the person who discloses such information proves that, at the time of such disclosure, he or she was not aware and was not required to be aware that such information was incorrect or incomplete.
(2) Disclosure of defamatory matters concerning a person, or matters which may adversely affect a person’s economic situation, is deemed to be unlawful unless the person who discloses such matters proves that they are true.
(3) Regardless of the provisions of subsections (1) and (2) of this section, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential breach.
(4) In the event of disclosure of incorrect information, the victim may demand that the person who has disclosed such information refute the information or publish a correction at his or her own expense, regardless of whether the disclosure of the information was unlawful or not.”
Section 1050 – Culpability [süü] as basis for liability
“(1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable [süüdi] of causing the damage.
(2) The situation, age, education, knowledge, abilities and other personal characteristics of a person shall be taken into consideration in the assessment of the culpability [süü] of the person for the purposes of this Chapter.
(3) If several persons are liable for compensation for damage and, pursuant to law, one or more of them are liable for compensation for unlawfully caused damage regardless of whether or not they are culpable, the wrongfulness of the behaviour and the form of the culpability of the persons liable for compensation for the damage shall be taken into consideration in apportioning among them the obligation to compensate for the damage.”
Section 1055 – Prohibition on damaging actions
“(1) If unlawful damage is caused continually or a threat is made that unlawful damage will be caused, the victim or the person who is threatened has the right to demand the cessation of the behaviour causing the damage or of the threats of such behaviour. In the event of bodily injury, damage to health or a breach of the inviolability of personal life or of any other personality rights, it may be demanded, inter alia, that the tortfeasor be prohibited from approaching others (restraining order), that the use of housing or communications be regulated, or that other similar measures be applied.
(2) The right to demand the cessation of behaviour causing damage as specified in subsection (1) of this section shall not apply if it is reasonable to expect that such behaviour can be tolerated in conditions of human coexistence or in view of a significant public interest. In such cases, the victim shall have the right to make a claim for compensation for damage caused unlawfully.
…”
39. The Information Society Services Act (Infoühiskonna teenuse seadus) provides as follows:
Section 8 – Restricted liability in the case of mere transmission of information and provision of access to a public data communications network
“(1) Where a service is provided that consists of the mere transmission in a public data communication network of information provided by a recipient of the service, or the provision of access to a public data communication network, the service provider shall not be liable for the information transmitted, on condition that the provider:
1. does not initiate the transmission;
2. does not select the receiver of the transmission; and
3. does not select or modify the information contained in the transmission.
(2) The acts of transmission and of provision of access within the meaning of subsection 1 of this section include the automatic, intermediate and transient storage of the information transmitted, in so far as this takes place for the sole purpose of carrying out the transmission in the public data communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.”
Section 9 – Restricted liability in the case of temporary storage of information in cache memory
“(1) Where a service is provided that consists of the transmission in a public data communication network of information provided by a recipient of the service, the service provider shall not be liable for the automatic, intermediate and temporary storage of that information if the method of transmission concerned requires caching for technical reasons and the caching is performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service at their request, on condition that:
1. the provider does not modify the information;
2. the provider complies with conditions on access to the information;
3. the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used in the industry;
4. the provider does not interfere with the lawful use of technology which is widely recognised and used by the industry to obtain data on the use of the information;
5. the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court, the police or a State supervisory authority has ordered such removal.”
Section 10 – Restricted liability in the case of provision of an information storage service
“(1) Where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider shall not be liable for the information stored at the request of a recipient of the service, on condition that:
1. the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent;
2. the provider, upon obtaining knowledge or awareness of the facts specified in indent 1 of this subsection, acts expeditiously to remove or to disable access to the information.
(2) Subsection 1 of this section shall not apply when the recipient of the service is acting under the authority or the control of the provider.”
Section 11 – No obligation to monitor
“(1) A service provider specified in sections 8 to 10 of this Act is not obliged to monitor information upon the mere transmission thereof or provision of access thereto, temporary storage thereof in cache memory or storage thereof at the request of the recipient of the service, nor is the service provider obliged to actively seek information or circumstances indicating illegal activity.
(2) The provisions of subsection 1 of this section shall not restrict the right of an official exercising supervision to request the disclosure of such information by a service provider.
(3) Service providers are required to promptly inform the competent supervisory authorities of alleged illegal activities undertaken or information provided by recipients of their services specified in sections 8 to 10 of this Act, and to communicate to the competent authorities information enabling the identification of recipients of their service with whom they have storage agreements.
…”
40. Articles 244 et seq. of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik) provide for pre-trial taking of evidence (eeltõendamismenetlus) – a procedure in which evidence may be taken before the judicial proceedings have even been initiated if it can be presumed that evidence might be lost or that using the evidence afterwards might involve difficulties.
41. In a judgment of 21 December 2005 (case no. 3-2-1-95-05) the Supreme Court found that, for the purposes of section 1047 of the Obligations Act, disclosure (avaldamine) meant disclosure of information to third parties. A person who transmitted information to a media publisher (meediaväljaanne) could be considered a discloser (avaldaja) even if he or she was not the publisher of the article (ajaleheartikli avaldaja) in question. The Supreme Court has reiterated the same position in its subsequent judgments, for example in a judgment of 21 December 2010 (case no. 3-2-1-67-10).
42. In a number of domestic cases actions for defamation have been brought against several defendants, including, for example, a publisher of a newspaper and the author of an article (the Supreme Court’s judgment of 7 May 1998 in case no. 3-2-1-61-98), a publisher of a newspaper and an interviewee (the Supreme Court’s judgment of 1 December 1997 in case no. 3-2-1-99-97), and solely against a publisher of a newspaper (the Supreme Court’s judgment of 30 October 1997 in case no. 3-2-1-123-97, and a judgment of 10 October 2007 in case no. 3-2-1-53-07).
43. Following the Supreme Court’s judgment of 10 June 2009 in the case giving rise to the present case before the Court (case no. 3-2-1-43-09), several lower courts have resolved the issue of liability in respect of comments relating to online news articles in a similar manner. Thus, in a judgment of 21 February 2012 the Tallinn Court of Appeal (case no. 2-08-76058) upheld a lower court’s judgment concerning a defamed person’s claim against a publisher of a newspaper. The publisher was found liable for defamatory online comments posted by readers in the newspaper’s online commenting environment. The courts found that the publisher was a content service provider. They rejected the publisher’s request for a preliminary ruling from the Court of Justice of the European Union (CJEU), finding that it was evident that the defendant did not satisfy the criteria for a passive service provider as previously interpreted by the CJEU and the Supreme Court and that the relevant rules were sufficiently clear. Therefore, no new directions from the CJEU were needed. The courts also noted that pursuant to the judgment of 23 March 2010 of the CJEU (Joined Cases C-236/08 to C-238/08 Google France and Google [2010] ECR I-2417) it was for the national courts to assess whether the role played by a service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. The courts considered that this was not the case in the matter before them. As the publisher had already deleted the defamatory comments by the time of the delivery of the judgment, no ruling was made on that issue; the plaintiff’s claim in respect of non-pecuniary damage was dismissed. A similar judgment was handed down by the Tallinn Court of Appeal on 27 June 2013 (case no. 2-10-46710). In that case as well, an Internet news portal was held liable for defamatory comments posted by readers and the plaintiff’s claim in respect of non-pecuniary damage was dismissed.
III. RELEVANT INTERNATIONAL INSTRUMENTS
A. Council of Europe documents
44. On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. The relevant parts of the Declaration read as follows:
“The member states of the Council of Europe,
…
Convinced also that it is necessary to limit the liability of service providers when they act as mere transmitters, or when they, in good faith, provide access to, or host, content from third parties;
Recalling in this respect Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce);
Stressing that freedom of communication on the Internet should not prejudice the human dignity, human rights and fundamental freedoms of others, especially minors;
Considering that a balance has to be found between respecting the will of users of the Internet not to disclose their identity and the need for law enforcement authorities to trace those responsible for criminal acts;
…
Declare that they seek to abide by the following principles in the field of communication on the Internet:
Principle 1: Content rules for the Internet
Member states should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery.
…
Principle 3: Absence of prior state control
Public authorities should not, through general blocking or filtering measures, deny access by the public to information and other communication on the Internet, regardless of frontiers. This does not prevent the installation of filters for the protection of minors, in particular in places accessible to them, such as schools or libraries.
Provided that the safeguards of Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms are respected, measures may be taken to enforce the removal of clearly identifiable Internet content or, alternatively, the blockage of access to it, if the competent national authorities have taken a provisional or final decision on its illegality.
…
Principle 6: Limited liability of service providers for Internet content
Member states should not impose on service providers a general obligation to monitor content on the Internet to which they give access, that they transmit or store, nor that of actively seeking facts or circumstances indicating illegal activity.
Member states should ensure that service providers are not held liable for content on the Internet when their function is limited, as defined by national law, to transmitting information or providing access to the Internet.
In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.
When defining under national law the obligations of service providers as set out in the previous paragraph, due care must be taken to respect the freedom of expression of those who made the information available in the first place, as well as the corresponding right of users to the information.
In all cases, the above-mentioned limitations of liability should not affect the possibility of issuing injunctions where service providers are required to terminate or prevent, to the extent possible, an infringement of the law.
Principle 7: Anonymity
In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.”
45. In its Recommendation CM/Rec(2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies.
46. Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on a new notion of media (adopted on 21 September 2011) reads as follows:
“…
The Committee of Ministers, under the terms of Article 15. b of the Statute of the Council of Europe recommends that member states:
– adopt a new, broad notion of media which encompasses all actors involved in the production and dissemination, to potentially large numbers of people, of content (for example information, analysis, comment, opinion, education, culture, art and entertainment in text, audio, visual, audiovisual or other form) and applications which are designed to facilitate interactive mass communication (for example social networks) or other content-based large-scale interactive experiences (for example online games), while retaining (in all these cases) editorial control or oversight of the contents;
– review regulatory needs in respect of all actors delivering services or products in the media ecosystem so as to guarantee people’s right to seek, receive and impart information in accordance with Article 10 of the European Convention on Human Rights, and to extend to those actors relevant safeguards against interference that might otherwise have an adverse effect on Article 10 rights, including as regards situations which risk leading to undue self-restraint or self-censorship;
– apply the criteria set out in the appendix hereto when considering a graduated and differentiated response for actors falling within the new notion of media based on relevant Council of Europe media-related standards, having regard to their specific functions in the media process and their potential impact and significance in ensuring or enhancing good governance in a democratic society;
…”
The Appendix to the Recommendation states as follows, in so far as relevant:
“7. A differentiated and graduated approach requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe.
…
30. Editorial control can be evidenced by the actors’ own policy decisions on the content to make available or to promote, and on the manner in which to present or arrange it. Legacy media sometimes publicise explicitly written editorial policies, but they can also be found in internal instructions or criteria for selecting or processing (for example verifying or validating) content. In the new communications environments, editorial policies can be embedded in mission statements or in terms and conditions of use (which may contain very detailed provisions on content), or may be expressed informally as a commitment to certain principles (for example netiquette, motto).
…
32. Editorial process can involve users (for example peer review and take down requests) with ultimate decisions taken according to an internally defined process and having regard to specified criteria (reactive moderation). New media often resort to ex post moderation (often referred to as post-moderation) in respect of user generated content, which may at first sight be imperceptible. Editorial processes may also be automated (for example in the case of algorithms ex ante selecting content or comparing content with copyrighted material).
…
35. Again, it should be noted that different levels of editorial control go along with different levels of editorial responsibility. Different levels of editorial control or editorial modalities (for example ex ante as compared with ex post moderation) call for differentiated responses and will almost certainly permit best to graduate the response.
36. Consequently, a provider of an intermediary or auxiliary service which contributes to the functioning or accessing of a media but does not – or should not – itself exercise editorial control, and therefore has limited or no editorial responsibility, should not be considered to be media. However, their action may be relevant in a media context. Nonetheless, action taken by providers of intermediary or auxiliary services as a result of legal obligations (for example take down of content in response to a judicial order) should not be considered as editorial control in the sense of the above.
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63. The importance of the role of intermediaries should be underlined. They offer alternative and complementary means or channels for the dissemination of media content, thus broadening outreach and enhancing effectiveness in media’s achievements of its purposes and objectives. In a competitive intermediaries and auxiliaries market, they may significantly reduce the risk of interference by authorities. However, given the degree to which media have to rely on them in the new ecosystem, there is also a risk of censorship operated through intermediaries and auxiliaries. Certain situations may also pose a risk of private censorship (by intermediaries and auxiliaries in respect of media to which they provide services or content they carry).”
47. On 16 April 2014 Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows:
Freedom of expression and information
“You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:
1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;
2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;
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6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.”
B. Other international documents
48. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 16 May 2011 to the Human Rights Council (A/HRC/17/27):
“25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
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27. In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate. …
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43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf. …
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74. Intermediaries play a fundamental role in enabling Internet users to enjoy their right to freedom of expression and access to information. Given their unprecedented influence over how and what is circulated on the Internet, States have increasingly sought to exert control over them and to hold them legally liable for failing to prevent access to content deemed to be illegal.”
49. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following:
“No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.”
IV. RELEVANT EUROPEAN UNION AND COMPARATIVE LAW MATERIAL
A. European Union instruments and case-law
1. Directive 2000/31/EC
50. The relevant parts of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provides as follows:
“(9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression
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(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.
(43) A service provider can benefit from the exemptions for ‘mere conduit’ and for ‘caching’ when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission.
(44) A service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of ‘mere conduit’ or ‘caching’ and as a result cannot benefit from the liability exemptions established for these activities.
(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it.
(46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information.
(47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.
(48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities.
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Article 1 – Objective and scope
1. This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States.
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Article 2 – Definitions
For the purpose of this Directive, the following terms shall bear the following meanings:
(a) ’information society services’: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC;
(b) ’service provider’: any natural or legal person providing an information society service;
(c) ’established service provider’: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider;
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Section 4: Liability of intermediary service providers
Article 12 – “Mere conduit”
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 13 – “Caching”
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 14 – Hosting
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information.
Article 15 – No general obligation to monitor
1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.
2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.”
2. Directive 98/34/EC as amended by Directive 98/48/EC
51. Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Directive 98/48/EC, provides as follows:
Article 1
“For the purposes of this Directive, the following meanings shall apply …
2. ’service’, any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.
For the purposes of this definition:
– ’at a distance’ means that the service is provided without the parties being simultaneously present,
– ’by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means,
– ’at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request.
An indicative list of services not covered by this definition is set out in Annex V.
This Directive shall not apply to:
– radio broadcasting services,
– television broadcasting services covered by point (a) of Article 1 of Directive 89/552/EEC.”
3. Case-law of the Court of Justice of the European Union
52. In a judgment of 23 March 2010 (Joined Cases C-236/08 to C-238/08 Google France and Google) the CJEU considered that in order to establish whether the liability of a referencing service provider could be limited under Article 14 of Directive 2000/31/EC, it was necessary to examine whether the role played by that service provider was neutral, in the sense that its conduct was merely technical, automatic and passive, pointing to a lack of knowledge of or control over the data which it stored. Article 14 of the Directive on Electronic Commerce had to be interpreted as meaning that the rule laid down therein applied to an Internet referencing service provider in the event that that service provider had not played an active role of such a kind as to give it knowledge of or control over the data stored. If it had not played such a role, that service provider could not be held liable for the data which it had stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it had failed to act expeditiously to remove or to disable access to the data concerned.
53. In a judgment of 12 July 2011 (Case C-324/09 L’Oréal and Others) the CJEU ruled that Article 14(1) of Directive 2000/31/EC was to be interpreted as applying to the operator of an online marketplace where that operator had not played an active role allowing it to have knowledge of or control over the data stored. The operator played such a role when it provided assistance which entailed, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace had not played such an active role and the service provided fell, as a consequence, within the scope of Article 14(1) of Directive 2000/31/EC, the operator none the less could not, in a case which could result in an order to pay damages, rely on the exemption from liability provided for under that Article if it had been aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question had been unlawful and, in the event of it being so aware, had failed to act expeditiously in accordance with Article 14(1)(b) of Directive 2000/31/EC.
54. In a judgment of 24 November 2011 (Case C-70/10 Scarlet Extended) the CJEU ruled that an injunction could not be made against an Internet service provider requiring it to install a system for filtering all electronic communications passing via its services, in particular those involving the use of peer-to-peer software, which applied indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audiovisual work in respect of which the applicant claimed to hold intellectual property rights, with a view to blocking the transfer of files the sharing of which would infringe copyright.
55. In a judgment of 16 February 2012 (Case C-360/10 SABAM) the CJEU held that Directives 2000/31/EC, 2001/29/EC and 2004/48/EC precluded a national court from issuing an injunction against a hosting service provider requiring it to install a system for filtering information stored on its servers by its service users, which applied indiscriminately to all those users, as a preventive measure, exclusively at its expense and for an unlimited period, and which was capable of identifying electronic files containing musical, cinematographic or audiovisual work in respect of which the applicant for the injunction claimed to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.
56. In a judgment of 13 May 2014 (Case C-131/12 Google Spain and Google) the CJEU was called on to interpret Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data. It found that the activity of an Internet search engine was to be classified as “processing of personal data” within the meaning of Directive 95/46/EC and held that such processing of personal data, carried out by the operator of a search engine, was liable to affect significantly the fundamental rights to privacy and to the protection of personal data (guaranteed under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union) when the search by means of that engine was carried out on the basis of an individual’s name, since that processing enabled any Internet user to obtain through the list of results a structured overview of the information relating to that individual that could be found on the Internet and thereby to establish a more or less detailed profile of him or her. Furthermore, the effect of the interference with the rights of the data subject was heightened on account of the important role played by the Internet and search engines in modern society, which rendered the information contained in such a list of results ubiquitous. In the light of the potential seriousness of that interference, it could not be justified merely by the economic interest of the operator. The CJEU considered that a fair balance should be sought between the legitimate interest of Internet users in having access to the information and the data subject’s fundamental rights. The data subject’s fundamental rights, as a general rule, overrode the interest of Internet users, but that balance might, however, depend on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information. The CJEU held that in certain cases the operator of a search engine was obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, even when its publication in itself on the web pages in question was lawful. That was so in particular where the data appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they had been processed and in the light of the time that had elapsed.
57. In a judgment of 11 September 2014 (Case C-291/13 Papasavvas) the CJEU found that since a newspaper publishing company which posted an online version of a newspaper on its website had, in principle, knowledge about the information which it posted and exercised control over that information, it could not be considered to be an “intermediary service provider” within the meaning of Articles 12 to 14 of Directive 2000/31/EC, whether or not access to that website was free of charge. Thus, it held that the limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31/EC did not apply to the case of a newspaper publishing company which operated a website on which the online version of a newspaper was posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on the website, since it had knowledge of the information posted and exercised control over that information, whether or not access to the website was free of charge.
B. Comparative law material
58. From the information available to the Court, it would appear that in a number of the member States of the Council of Europe – being also member States of the European Union – the Directive on Electronic Commerce, as transposed into national law, constitutes a primary source of law in the area in question. It would also appear that the greater the involvement of the operator in the third-party content before online publication – whether through prior censoring, editing, selection of recipients, requesting comments on a predefined subject or the adoption of content as the operator’s own – the greater the likelihood that the operator will be held liable for any content contained therein. Some countries have enacted certain further regulations specifically concerning the take-down procedures relating to allegedly unlawful content on the Internet, and provisions concerning distribution of liability in this context.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
59. The applicant company complained that holding it liable for the comments posted by the readers of its Internet news portal infringed its freedom of expression as provided in Article 10 of the Convention, which reads as follows:
“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. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
60. The Government contested that argument.
A. The Chamber judgment
61. In its judgment of 10 October 2013 the Chamber noted at the outset that the parties’ views diverged as to the applicant company’s role in the present case. According to the Government, the applicant company was to be considered the discloser of the defamatory comments, whereas the applicant company was of the opinion that its freedom to impart information created and published by third parties was at stake, and that the applicant company itself was not a publisher of the third-party comments. The Chamber did not proceed to determine the exact role to be attributed to the applicant company’s activities and noted that it was not, in substance, in dispute between the parties that the domestic courts’ decisions in respect of the applicant company constituted an interference with its freedom of expression guaranteed under Article 10 of the Convention.
62. As regards the lawfulness of the interference, the Chamber rejected the applicant company’s argument that the interference with its freedom of expression was not “prescribed by law”. The Chamber observed that the domestic courts had found that the applicant company’s activities did not fall within the scope of the Directive on Electronic Commerce and the Information Society Services Act. It considered that it was not its task to take the place of the domestic courts and that it was primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. The Chamber was furthermore satisfied that the relevant provisions of the civil law – although they were quite general and lacked detail in comparison with, for example, the Information Society Services Act – along with the relevant case-law, made it clear that a media publisher was liable for any defamatory statements made in its publication. The Chamber had regard to the fact that the applicant company was a professional publisher which operated one of the largest news portals in Estonia, and also that a degree of notoriety had been attributable to comments posted in its commenting area. Against that background, the Chamber considered that the applicant company had been in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail.
63. The Chamber further found that the restriction of the applicant company’s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. In the Chamber’s view, the fact that the actual authors of the comments were also in principle liable did not remove the legitimate aim of holding the applicant company liable for any damage to the reputation and rights of others.
64. As regards the proportionality of the interference, the Chamber noted that there was no dispute that the comments in question had been of a defamatory nature. In assessing the proportionality of the interference with the applicant company’s freedom of expression, the Chamber had regard to the following elements. Firstly, it examined the context of the comments, secondly, the measures applied by the applicant company in order to prevent or remove defamatory comments, thirdly, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and fourthly, the consequences of the domestic proceedings for the applicant company.
65. In particular, the Chamber considered that the news article published by the applicant company that had given rise to the defamatory comments had concerned a matter of public interest and the applicant company could have foreseen the negative reactions and exercised a degree of caution in order to avoid being held liable for damaging the reputation of others. However, the prior automatic filtering and notice-and-take-down system used by the applicant company had not ensured sufficient protection for the rights of third parties. Moreover, publishing news articles and making readers’ comments on them public had been part of the applicant company’s professional activities and its advertising revenue depended on the number of readers and comments. The applicant company had been able to exercise a substantial degree of control over readers’ comments and it had been in a position to predict the nature of the comments a particular article was liable to prompt and to take technical or manual measures to prevent defamatory statements from being made public. Furthermore, there had been no realistic opportunity of bringing a civil claim against the actual authors of the comments as their identity could not be easily established. In any event, the Chamber was not convinced that measures allowing an injured party to bring a claim only against the authors of defamatory comments would have guaranteed effective protection of the injured parties’ right to respect for their private life. It had been the applicant company’s choice to allow comments by non-registered users, and by doing so it had to be considered to have assumed a certain responsibility for such comments. For all the above reasons, and considering the moderate amount of damages the applicant company had been ordered to pay, the restriction on its freedom of expression was considered to have been justified and proportionate. There had accordingly been no violation of Article 10 of the Convention.
B. The parties’ submissions to the Grand Chamber
1. The applicant company
(a) General remarks
66. The applicant company argued that in today’s world, Internet media content was increasingly created by the users themselves. User-generated content was of high importance – comments on news stories and articles often raised serious debates in society and even informed journalists of issues that were not publicly known, thereby contributing to the initiation of journalistic investigations. The opportunity of “everyone” to contribute to public debate advanced democracy and fulfilled the purposes of freedom of expression in the best possible way. It was a great challenge in this setting to hold those who infringed the rights of others accountable while avoiding censorship.
67. As regards user-generated content, the applicant company was of the opinion that it was sufficient for a host to expeditiously remove third-party content as soon as it became aware of its illegal nature. If this was deemed insufficient by the Court, anonymous public speech would be prohibited or there would be arbitrary restrictions on commenters’ freedom of communication by the intermediary, which would be impelled to err on the side of caution to avoid possible subsequent liability.
(b) Delfi’s role
68. The applicant company called on the Grand Chamber to look at the case as a whole, including the question whether the applicant company was to be characterised as a traditional publisher or an intermediary. A publisher was liable for all content published by it regardless of the authorship of the particular content. However, the applicant company insisted that it should be regarded as an intermediary and it had as such been entitled to follow the specific and foreseeable law limiting the obligation to monitor third-party comments. It argued that intermediaries were not best suited to decide upon the legality of user-generated content. This was especially so in respect of defamatory content since the victim alone could assess what caused damage to his reputation.
(c) Lawfulness
69. The applicant company argued that the interference with its freedom of expression – including its right to store information and to enable users to impart their opinions – was not prescribed by law. It submitted that there was no legislation or case-law stating that an intermediary was to be considered a publisher of content which it was not aware of. On the contrary, the applicable law expressly prohibited the imposition of liability on service providers for third-party content. In this connection, the applicant company referred to the Directive on Electronic Commerce, the EstonianInformation Society Services Act and the Council of Europe Declaration on freedom of communication on the Internet. The Directive provided for limited and notice-based liability with take-down procedures for illegal content. Service providers were exempted from liability where, upon obtaining actual knowledge of illegal activities, they acted expeditiously to remove or disable access to the information concerned. Such removal or disabling of access had to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level (recital 46 of the Directive). The applicant company argued that this law was indisputably formulated with sufficient precision to enable a citizen to regulate his conduct. According to the applicant company, its behaviour had been in full compliance with the applicable law as it had removed the defamatory comments the same day it had been notified by the original plaintiff.
70. The applicant company further argued that even the existing tort law did not classify disseminators (postal workers, libraries, bookstores and others) as publishers. Thus, it remained entirely unclear how the existing tort law had been applied to a “novel area related to new technologies” as held in the Chamber judgment, that is, to an online news portal operator providing a service enabling users to interact with journalists and each other and to contribute valuable ideas to the discussion of matters of public interest. There was no law imposing an obligation on the applicant company to proactively monitor user comments.
(d) Legitimate aim
71. The applicant company did not dispute that the interference in question had a legitimate aim.
(e) Necessary in a democratic society
72. According to the applicant company, the interference was not necessary in a democratic society. It argued that as a result of the Chamber judgment it had two choices. Firstly, it could employ an army of highly trained moderators to patrol (in real time) each message board (for each news article) to screen any message that could be labelled defamatory (or that could infringe intellectual property rights, inter alia); at the end of the day, these moderators would, just in case, remove any sensitive comments and all discussions would be moderated so that they were limited to the least controversial issues. Otherwise, it could simply avoid such a massive risk and shut down these fora altogether. Either way, the technological capability to provide ordinary readers with an opportunity to freely comment on daily news and independently assume responsibility for their own comments would be abandoned.
73. The applicant company argued that the Supreme Court’s judgment had had a “chilling effect” on freedom of expression and that it had restricted the applicant company’s freedom to impart information. It amounted to the establishment of an obligation to censor private individuals.
74. In support of its argument that the interference was not necessary in a democratic society, the applicant company relied on the following factors.
75. Firstly, it argued that the comments were reactions from members of the public to an event caused by the Saaremaa Shipping Company and not to the article as such. Furthermore, the article was a balanced and neutral one. It addressed an issue of great importance to the residents of the biggest island of Estonia affecting their everyday lives. The readers’ negative reactions had not been caused by the article but by the shipping company.
76. Secondly, the applicant company had applied sufficient measures to prevent or remove defamatory comments; in the present case the comments in question had been removed on the same day that the applicant company had been notified of them.
77. Thirdly, the applicant company argued that the actual authors of the comments should bear responsibility for their contents. It disagreed with the Chamber’s finding that it was difficult to establish the identity of the authors of the comments and contended that the authors’ identities could be established in the “pre-trial taking of evidence” procedure under Article 244 of the Code of Civil Procedure. Once the names and addresses of the authors were established, a claim against them could be brought without any difficulties.
78. Fourthly, the applicant company insisted that there was no pressing social need for a strict liability standard for service providers. It argued that there was a European consensus that no service provider should be liable for content it had not authored. Accordingly, the margin of appreciation afforded to the Contracting States in this respect was necessarily a narrow one. Furthermore, it considered that the modest sum it had been ordered to pay in compensation for non-pecuniary damage did not justify the interference. It also emphasised that if the applicant company enjoyed limited liability, the original plaintiff would not have been left without a remedy – he could have sued the actual authors of the comments. The applicant company objected to the establishment of private censorship and contended that it was sufficient to have a two-pronged system for the protection of the rights of third parties: a notice-and-take-down system and the possibility of bringing a claim against the authors of defamatory comments. There was no convincingly established “pressing social need” for the liability of Internet service providers.
79. The applicant company also emphasised the importance of anonymity for free speech on the Internet; this encouraged the full involvement of all, including marginalised groups, political dissidents and whistle-blowers, and allowed individuals to be safe from reprisals.
80. Lastly, the applicant company contended that the domestic courts had clearly misinterpreted European Union (EU) law. It submitted that the Chamber judgment had created a collision of obligations and legal uncertainty since adhering to EU law on the issue of liability for host service providers would render the State liable under the Convention, whereas adhering to the test set out in the judgment would not be in conformity with EU law.
2. The Government
(a) General remarks
81. The Government made the following remarks in respect of the scope of the case. Firstly, according to the Court’s case-law it was for the domestic courts to decide on the domestically applicable law and interpret it. Furthermore, interpretation of EU law was the task of the CJEU. The domestic courts, in reasoned decisions, had found that the Estonian Obligations Act, rather than the Directive on Electronic Commerce or the Information Society Services Act, was applicable. The Grand Chamber should also proceed from this presumption and the applicant company’s allegations about the applicability of EU law were inadmissible. Secondly, the Government stressed that there existed a number of different types of Internet portals and the issue of their operators’ liability could not be generalised. The present case was limited to the activities of the Delfi portal at the material time. In that connection the Government pointed out that Delfi had actively invited readers to comment on the articles it had chosen itself; it had published anonymous comments posted on those articles and in the same environment; and the comments could be amended or deleted only by Delfi. The applicant company’s liability should be assessed in that specific context.
82. The Government emphasised that there was no dispute that the comments in question had been defamatory.
83. The Government noted that despite the applicant company’s allegations to that effect, it had not been forced to disable anonymous comments or to change its business model. On the contrary, Delfi remained the largest Internet portal in Estonia; anonymous commenting was still possible on the portal and the number of comments had risen from 190,000 comments a month in 2009 to 300,000 in 2013. According to an article published on 26 September 2013, Delfi deleted 20,000 to 30,000 comments monthly (7 to 10% of all comments). Postimees, the second-largest portal, deleted up to 7% of a total of 120,000 comments. Both portals had five employees who dealt with taking down insulting comments. Since December 2013 Delfi had used a two-tier commenting environment where registered comments and anonymous comments were shown separately.
(b) Lawfulness
84. The Government insisted that the interference with the applicant company’s rights had been “prescribed by law”. They referred to the domestic legislation and case-law summarised in paragraphs 32-36, 38 and 39 of the Chamber judgment, as well as the Court’s relevant case-law as summarised in the Chamber judgment. The Government also pointed out that there was no Estonian case-law on the basis of which Delfi – which encouraged the posting of comments on the articles selected and published by it – could have presumed that the owner of an Internet portal as a new media publication was not liable for the damage caused by comments posted on its articles, which formed an integral part of the news and which only Delfi could administer. Further, by the time the domestic judgments had been handed down in the Delfi case, it was more than clear that Internet media had a wide influence over the public and that in order to protect the private life of others, liability rules had to apply to new media as well.
85. The Government reiterated that the applicant company’s references to EU law and the Information Society Services Act should be disregarded. The Grand Chamber could only assess whether the effects of the interpretation of the Obligations Act were compatible with Article 10 § 2 of the Convention and could not assess the legislation the domestic courts had found not to be applicable. They also pointed out that the domestic courts had paid sufficient attention to the question whether the applicant company might be regarded as a caching or hosting service provider. However, they had found that this had not been the case. In particular, in the event of hosting, the service provider merely provided a data storage service, while the stored data and their insertion, amendment, removal and content remained under the control of the service users. In Delfi’s commenting environment, however, commenters lost control of their comments as soon as they had entered them, and they could not change or delete them. Having regard also to the other aspects of the case – Delfi chose the articles and their titles; Delfi invited readers to comment and set the rules on commenting (including that the comments had to be related to the article); Delfi profited from advertising revenue the more comments were posted; Delfi also selectively monitored the comments – the domestic courts had found that Delfi had not acted only as a technical intermediary service provider and could not be classified either as a cache or as a host. The Government also emphasised that the CJEU had never adjudicated on a case similar to the Delfi case. In any event, even if the CJEU’s case-law, such as L’Oréal and Others (C-324/09), was of relevance, it could be concluded that the role played by Delfi was an active one and it could not be granted the exemptions from liability under the Directive on Electronic Commerce.
(c) Legitimate aim
86. The Government submitted that the interference with the applicant company’s rights under Article 10 had the legitimate aim of protecting the honour of others.
(d) Necessary in a democratic society
87. As regards the question whether the interference was necessary in a democratic society, the Government emphasised at the outset the importance of the balance between Articles 10 and 8 of the Convention.
88. The Government referred extensively to the relevant reasoning of the Chamber judgment. In addition, they emphasised the following.
89. Firstly, as regards the context of the comments, the Government noted that the domestic courts had attached importance to the fact that the selection and publication of the news articles and the publication of readers’ comments on these articles in the same environment had been part of the applicant company’s professional activity as a discloser of information. Delfi invited readers to comment on its articles – often giving the articles provocative headlines and showing the number of comments on the main page immediately after the title of an article in bold red, so that commenting on an article would be more enticing – which in turn brought in advertising revenue.
90. Secondly, in respect of the measures applied by the applicant company, the Government stressed the importance of ensuring protection of third parties in relation to the Internet, which had become an extensive medium available to the majority of the population and used on a daily basis. The Government added that the applicant company’s responsibility for the comments had also been obvious as the actual writers of comments could not modify or delete their comments once they were posted on the Delfi news portal – only the applicant company had the technical means to do this. The Government also pointed out that any information communicated via the Internet spread so quickly that measures taken weeks or even days later to protect a person’s honour were no longer sufficient because the offensive comments had already reached the public and done the damage. The Government further argued that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.
91. Thirdly, as regards the liability of the actual authors, the Government submitted that in civil proceedings – a remedy which was preferable to criminal remedies in defamation cases – investigative measures such as surveillance procedures were not accessible. In respect of the procedure for “pre-trial taking of evidence”, the Government argued that this was not a reasonable alternative in the case of anonymous comments. Firstly, the relevant Internet Protocol (IP) addresses could be not always established, for example if the user data or the comment had been deleted or an anonymous proxy had been used. Secondly, even if the computers used for posting the comments could be identified, it could still prove impossible to identify the persons who had made the postings, for example, in cases where a public computer, a Wi-Fi hotspot, a dynamic IP address or a server in a foreign country had been used, or for other technical reasons.
92. Fourthly, as regards the consequences of the domestic proceedings for the applicant company, the Government noted that Delfi had not needed to change its business model or disallow anonymous comments. In fact, the total number of comments – the majority of which were anonymous – had increased, while Delfi now employed five moderators. The Government also pointed out that the finding of liability was not aimed at obtaining huge or punitive awards of compensation. Indeed, in Delfi’s case the compensation it had been obliged to pay for non-pecuniary damage was negligible (EUR 320) and in the subsequent case-law (see paragraph 43 above) the courts had held that finding a violation or deleting a comment could be a sufficient remedy. The Government concluded that the applicant company’s civil liability had not had a “chilling effect” on the freedom of expression, but was justified and proportionate.
93. Lastly, referring to the legislation and practice of several European countries, the Government contended that there was no European consensus on or trend towards excluding the liability of an Internet portal owner which acted as a content service provider and the discloser of anonymous comments on its own articles.
C. The third-party interveners’ arguments
1. The Helsinki Foundation for Human Rights
94. The Helsinki Foundation for Human Rights in Warsaw emphasised the differences between the Internet and the traditional media. It noted that online services like Delfi acted simultaneously in two roles: as content providers with regard to their own news and as host providers with regard to third-party comments. It submitted that moderation of user-generated content or the power of disabling access to it should not be regarded as having effective editorial control. Intermediary service providers should not be treated as traditional media and should not be subject to the same liability regime.
95. The Helsinki Foundation argued that authors should be accountable for their defamatory comments and the State should provide a regulatory framework making it possible to identify and prosecute online offenders. At the same time, it also contended that the possibility of publishing anonymously on the Internet should be regarded as a value.
2. Article 19
96. Article 19 argued that one of the most innovative features of the Internet was the ease with which it allowed any person to express his or her views to the entire world without seeking the prior approval of publishers. Comment platforms enabled and promoted public debate in its purest form and this had very little to do with the provision of news. As a matter of fact and form, comments sections on news websites were better understood as newspapers appropriating the private discussion model that was native to the Internet rather than the other way around. Article 19 argued that making websites responsible for comments made by users would impose an unacceptable burden on websites.
97. Article 19 contended that the Directive on Electronic Commerce was meant to shield websites from liability for their users’ comments, regardless of their own content. Article 19 insisted that while the normal liability rules should continue to apply to online news sites for the articles they published, they should be regarded as hosts – rather than publishers – for the purposes of the comment section on their website. As hosts, online news sites should in principle be immune from liability for third-party content in circumstances where they had not been involved in directly modifying the content at issue. They should not be held liable when they took all reasonable steps to remove content upon being notified, and they should not automatically be held liable simply because they decided not to remove a comment reported to them.
3. Access
98. According to Access, anonymity and pseudonymity supported the fundamental rights of privacy and freedom of expression. A regulatory prohibition on anonymous use of the Internet would constitute an interference with the rights to privacy and freedom of expression protected under Articles 8 and 10 of the Convention, and blanket restrictions on anonymous and pseudonymous expression would impair the very essence of these rights. Access referred to the long-standing case-law of several countries protecting the right to anonymous communication, online and offline.
99. Furthermore, Access pointed out that services designed to provide enhanced confidentiality and anonymity while using the Internet had become more popular in the wake of revelations of mass surveillance online. It further argued that restricting Internet users to identified expression would harm the Internet economy, and referred to research which had concluded that the most important contributors online were those using pseudonyms.
100. As regards real-name policy, evidence from China showed that such a measure had caused a dramatic drop in the number of comments posted. Experience in Korea had demonstrated that real-name policy failed to meaningfully improve comments, whereas it was discriminatory against domestic Internet companies, as the users had sought alternative, international platforms that still allowed anonymous and pseudonymous comments.
4. Media Legal Defence Initiative
101. Media Legal Defence Initiative (MLDI) made its submissions on behalf of twenty-eight non-governmental and media organisations and companies. It noted that the vast majority of online media outlets allowed reader comments. Through the comments facility, readers could debate the news amongst themselves as well as with journalists. This transformed the media from a one-way flow of communication into a participatory form of speech which recognised the voice of the reader and allowed different viewpoints to be aired.
102. MLDI noted that the boundaries between access and content were now increasingly blurred and “intermediaries” included enhanced search services, online marketplaces, web 2.0 applications and social networking sites. From the users’ perspective, they all facilitated access to and use of content and were crucial to the realisation of the right to freedom of expression.
103. MLDI contended that it was the States’ task to ensure a regulatory framework that protected and promoted freedom of expression whilst also guarding other rights and interests. It provided a detailed overview of the regulatory framework for intermediary liability in the United States of America and in the EU. It noted that approaches in these jurisdictions were distinct, but nevertheless similar in that it was acknowledged that some level of protection for intermediaries was vital and that there was no requirement that intermediaries should monitor user content. It also noted that in some member States notice-and-take-down procedures had resulted in excessive liability on intermediaries and the taking down of legitimate content.
104. MLDI also elaborated on the emerging good practices in the regulation of user-generated content by online media. It pointed out that the majority of publications in North America and Europe did not screen or monitor comments before they were posted. They did, however, engage in some kind of post-publication moderation. Many online media outlets also ran filtering software and had mechanisms in place to block users who consistently broke the rules. The majority of online media, including leading European news outlets, required user registration but users were not required to disclose their real names.
5. EDiMA, CCIA Europe and EuroISPA
105. The European Digital Media Association (EDiMA), the Computer & Communications Industry Association (CCIA Europe) and EuroISPA, a pan-European association of European Internet Services Providers Associations, made joint submissions as third parties.
106. The interveners argued that there was an established balance struck to date in legislation, international agreements and recommendations according to which, firstly, host service providers were exempt from liability for content in the absence of “actual knowledge”, and secondly, States were prohibited from requiring host providers to carry out general monitoring of content.
107. The interveners noted that whilst some information available online came from traditional publishing sources such as newspapers, and was rightly regulated by the law applicable to publishers, a large amount of online content came instead from individual speakers who could state their views unmediated by traditional editorial institutions. Comment facilities allowed for a right of reply and were thus fundamentally different from traditional publications, where no such right existed.
108. The interveners argued that the technology and operating processes for an online news discussion forum like Delfi were technologically indistinguishable from the hosting services such as social media/networking platforms, blogs/microblogs and others. Content composed and uploaded by users was automatically made publicly visible without human intervention. For many hosts considerations of scale made proactive human review of all user content effectively impossible. For small websites and start-ups, content control was likely to be particularly challenging and could be so costly as to be prohibitive.
109. The interveners argued that established law in the EU and other countries envisaged the notice-and-take-down system as a legal and practical framework for Internet content hosting. This balance of responsibilities between users and hosts allowed platforms to identify and remove defamatory or other unlawful speech, whilst at the same time enabling robust discussion on controversial topics of public debate; it made the operation of speech-hosting platforms practicable on a large scale.
D. The Court’s assessment
1. Preliminary remarks and the scope of the Court’s assessment
110. The Court notes at the outset that user-generated expressive activity on the Internet provides an unprecedented platform for the exercise of freedom of expression. That is undisputed and has been recognised by the Court on previous occasions (see Ahmet Yildirim v. Turkey, no. 3111/10, § 48, ECHR 2012, and Times Newspapers Ltd (nos. 1 and 2) v. the United Kingdom, nos. 3002/03 and 23676/03, § 27, ECHR 2009). However, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before, worldwide, in a matter of seconds, and sometimes remain persistently available online. These two conflicting realities lie at the heart of this case. Bearing in mind the need to protect the values underlying the Convention, and considering that the rights under Article 10 and 8 of the Convention deserve equal respect, a balance must be struck that retains the essence of both rights. Thus, while the Court acknowledges that important benefits can be derived from the Internet in the exercise of freedom of expression, it is also mindful that liability for defamatory or other types of unlawful speech must, in principle, be retained and constitute an effective remedy for violations of personality rights.
111. On this basis, and in particular considering that this is the first case in which the Court has been called upon to examine a complaint of this type in an evolving field of technological innovation, the Court considers it necessary to delineate the scope of its inquiry in the light of the facts of the present case.
112. Firstly, the Court observes that the Supreme Court recognised (see § 14 of its judgment of 10 June 2009 as set out in paragraph 31 above) that “[p]ublishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher [of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs”.
113. The Court sees no reason to call into question the above distinction made by the Supreme Court. On the contrary, the starting-point of the Supreme Court’s reflections, that is, the recognition of differences between a portal operator and a traditional publisher, is in line with the international instruments in this field, which manifest a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audiovisual media on the one hand and Internet-based media operations on the other. In the recent Recommendation of the Committee of Ministers to the member States of the Council of Europe on a new notion of media, this is termed a “differentiated and graduated approach [that] requires that each actor whose services are identified as media or as an intermediary or auxiliary activity benefit from both the appropriate form (differentiated) and the appropriate level (graduated) of protection and that responsibility also be delimited in conformity with Article 10 of the European Convention on Human Rights and other relevant standards developed by the Council of Europe” (see § 7 of the Appendix to Recommendation CM/Rec(2011)7, quoted in paragraph 46 above). Therefore, the Court considers that because of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content.
114. Secondly, the Court observes that the Supreme Court of Estonia found that the “legal assessment by the courts of the twenty comments of a derogatory nature [was] substantiated. The courts [had] correctly found that those comments [were] defamatory since they [were] of a vulgar nature, degrade[d] human dignity and contain[ed] threats” (see § 15 of the judgment as set out in paragraph 31 above). Further, in § 16 of its judgment, the Supreme Court reiterated that the comments degraded “human dignity” and were “clearly unlawful”. The Court notes that this characterisation and analysis of the unlawful nature of the comments in question (see paragraph 18 above) is obviously based on the fact that the majority of the comments are, viewed on their face, tantamount to an incitement to hatred or to violence against L.
115. Consequently, the Court considers that the case concerns the “duties and responsibilities” of Internet news portals, under Article 10 § 2 of the Convention, when they provide for economic purposes a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engage in clearly unlawful speech, which infringes the personality rights of others and amounts to hate speech and incitement to violence against them. The Court emphasises that the present case relates to a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them.
116. Accordingly, the case does not concern other fora on the Internet where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topics without the discussion being channelled by any input from the forum’s manager; or a social media platform where the platform provider does not offer any content and where the content provider may be a private person running the website or a blog as a hobby.
117. Furthermore, the Court notes that the applicant company’s news portal was one of the biggest Internet media publications in the country; it had a wide readership and there was a known public concern about the controversial nature of the comments it attracted (see paragraph 15 above). Moreover, as outlined above, the impugned comments in the present case, as assessed by the Supreme Court, mainly constituted hate speech and speech that directly advocated acts of violence. Thus, the establishment of their unlawful nature did not require any linguistic or legal analysis since the remarks were on their face manifestly unlawful. It is against this background that the Court will proceed to examine the applicant company’s complaint.
2. Existence of an interference
118. The Court notes that it was not in dispute between the parties that the applicant company’s freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts’ decisions. The Court sees no reason to hold otherwise.
119. Such an interference with the applicant company’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”.
3. Lawfulness
120. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, VgT Verein gegen Tierfabriken v. Switzerland, no. 24699/94, § 52, ECHR 2001-VI; Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gaweda v. Poland, no. 26229/95, § 39, ECHR 2002-II; and Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-I). However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012; Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A; and Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II).
121. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague, and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV, and Centro Europa 7 S.r.l. and Di Stefano, cited above, § 141).
122. The level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano, cited above, § 142). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July, cited above, § 41, with further references to Cantoni v. France, 15 November 1996, § 35, Reports 1996-V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004-VI).
123. In the present case the parties’ opinions differed as to whether the interference with the applicant company’s freedom of expression was “prescribed by law”. The applicant company argued that there was no domestic law according to which an intermediary was to be taken as a professional publisher of comments posted on its website by third parties regardless of whether it was aware of their specific content. On the contrary, the applicant company relied on the domestic and European legislation on Internet service providers and argued that it expressly prohibited the imposition of liability on service providers for third-party content.
124. The Government referred to the relevant provisions of the civil law and domestic case-law to the effect that media publishers were liable for their publications along with the authors. They added that there was no case-law on the basis of which the applicant company could have presumed that the owner of an Internet news portal as a new media publication was not liable for the comments posted on its articles. In their view the Court should proceed from the facts as established and the law as applied and interpreted by the domestic courts and not take account of the applicant company’s references to EU law. In any event, the EU law referred to by the applicant company actually supported the domestic courts’ interpretations and conclusions.
125. The Court observes that the difference in the parties’ opinions as regards the law to be applied stems from their diverging views on the issue of how the applicant company is to be classified. According to the applicant company, it should be classified as an intermediary as regards the third-party comments, whereas the Government argued that the applicant company was to be seen as a media publisher, including with regard to such comments.
126. The Court observes (see paragraphs 112 and 113 above) that the Supreme Court recognised the differences between the roles of a publisher of printed media, on the one hand, and an Internet portal operator engaged in media publications for an economic purpose, on the other. However, the Supreme Court found that because of their “economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator [were] publishers/disclosers” for the purposes of section 1047 of the Obligations Act (see § 14 of the judgment as set out in paragraph 31 above).
127. The Court considers that, in substance, the applicant argues that the domestic courts erred in applying the general provisions of the Obligations Act to the facts of the case as they should have relied upon the domestic and European legislation on Internet service providers. Like the Chamber, the Grand Chamber reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Centro Europa 7 S.r.l. and Di Stefano, cited above, § 140, and Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999-III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004-I). Thus, the Court confines itself to examining whether the Supreme Court’s application of the general provisions of the Obligations Act to the applicant’s situation was foreseeable for the purposes of Article 10 § 2 of the Convention.
128. Pursuant to the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act (see paragraphs 33 to 38 above), as interpreted and applied by the domestic courts, the applicant company was considered a publisher and deemed liable for the publication of the clearly unlawful comments. The domestic courts chose to apply these norms, having found that the special regulation contained in the Information Society Services Act transposing the Directive on Electronic Commerce into Estonian law did not apply to the present case since the latter related to activities of a merely technical, automatic and passive nature, unlike the applicant company’s activities, and that the objective pursued by the applicant company was not merely the provision of an intermediary service (see § 13 of the Supreme Court’s judgment as set out in paragraph 31 above). In this particular context the Court takes into account the fact that some countries have recognised that the importance and the complexity of the subject matter, involving the need to ensure proper balancing of different interests and fundamental rights, call for the enactment of specific regulations for situations such as that pertaining in the present case (see paragraph 58 above). Such action is in line with the “differentiated and graduated approach” to the regulation of new media recommended by the Council of Europe (see paragraph 46 above) and has found support in the Court’s case-law (see, mutatis mutandis, Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011). However, although various approaches are possible in legislation to take account of the nature of new media, the Court is satisfied on the facts of this case that the provisions of the Constitution, the Civil Code (General Principles) Act and the Obligations Act, along with the relevant case-law, made it foreseeable that a media publisher running an Internet news portal for an economic purpose could, in principle, be held liable under domestic law for the uploading of clearly unlawful comments, of the type at issue in the present case, on its news portal.
129. The Court accordingly finds that, as a professional publisher, the applicant company should have been familiar with the legislation and case-law, and could also have sought legal advice. The Court observes in this context that the Delfi news portal is one of the largest in Estonia. Public concern had already been expressed before the publication of the comments in the present case and the Minister of Justice had noted that victims of insults could bring a suit against Delfi and claim damages (see paragraph 15 above). Thus, the Court considers that the applicant company was in a position to assess the risks related to its activities and that it must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention.
4. Legitimate aim
130. The parties before the Grand Chamber did not dispute that the restriction of the applicant company’s freedom of expression had pursued the legitimate aim of protecting the reputation and rights of others. The Court sees no reason to hold otherwise.
5. Necessary in a democratic society
(a) General principles
131. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998-VI, BAILII: [1998] ECHR 77; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013):
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which … must, however, be construed strictly, and the need for any restrictions must be established convincingly …
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’… In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts …”
132. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, BAILII: [1994] ECHR 33; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I, BAILII: [1998] 25 EHRR 1; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313, BAILII: [1995] ECHR 12 , and Bladet Tromsø and Stensaas, cited above, § 59). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, 23 April 1992, § 46, Series A no. 236, BAILII: [1992] ECHR 48; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV, BAILII: [1998] ECHR 48; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001-I).
133. Moreover, the Court has previously held 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 (see Ahmet Yildirim, cited above, § 48, and Times Newspapers Ltd, cited above, § 27). 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 (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63).
134. In considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor and it is commonly acknowledged that the audiovisual media often have a much more immediate and powerful effect than the print media (see Purcell and Others v. Ireland, no. 15404/89, Commission decision of 16 April 1991, Decisions and Reports 70, p. 262). The methods of objective and balanced reporting may vary considerably, depending among other things on the media in question (see Jersild, cited above, § 31).
135. The Court has held that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, and Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013).
136. Moreover, the Court has held that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports 1998-VII, BAILII: [1998] ECHR 90; Garaudy v. France (dec.), no. 65831/01, ECHR 2003-IX; Norwood v. the United Kingdom (dec.), no. 23131/03, ECHR 2004-XI; Witzsch v. Germany (dec.), no. 7485/03, 13 December 2005; and Pavel Ivanov v. Russia (dec.), no. 35222/04, 20 February 2007).
137. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others, cited above, § 70; Pfeifer v. Austria, no. 12556/03, § 35, 15 November 2007; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see A. v. Norway, no. 28070/06, § 64, 9 April 2009, and Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012).
138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG, cited above, § 84).
139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).
(b) Application of the above principles to the present case
(i) Elements in the assessment of proportionality
140. The Court notes that it is not disputed that the comments posted by readers in reaction to the news article published on the applicant company’s Internet news portal, as presented in the portal’s commenting area, were of a clearly unlawful nature. Indeed, the applicant company removed the comments once it was notified by the injured party, and described them as “infringing” and “illicit” before the Chamber (see paragraph 84 of the Chamber judgment). Moreover, the Court is of the view that the majority of the impugned comments amounted to hate speech or incitements to violence and as such did not enjoy the protection of Article 10 (see paragraph 136 above). Thus, the freedom of expression of the authors of the comments is not at issue in the present case. Rather, the question before the Court is whether the domestic courts’ decisions, holding the applicant company liable for these comments posted by third parties, were in breach of its freedom to impart information as guaranteed by Article 10 of the Convention.
141. The Court observes that although the applicant company immediately removed the comments in question from its website upon notification by L.’s lawyers (see paragraphs 18 and 19 above), the Supreme Court held the applicant company liable on the basis of the Obligations Act as it should have prevented the publication of comments with clearly unlawful contents. It then referred to section 1047(3) of the Obligations Act, according to which disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the “gravity of the potential violation”. The Supreme Court thus held that, after the disclosure, the applicant company had failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. The inactivity of the applicant company was thus deemed unlawful as it had not “proved the absence of culpability” under section 1050(1) of the Obligations Act (see § 16 of the Supreme Court judgment as set out in paragraph 31 above).
142. In the light of the Supreme Court’s reasoning, the Court must, according to its consistent case-law, examine whether the domestic courts’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above). The Court observes that in order to resolve the question whether the domestic courts’ decisions holding the applicant company liable for the comments posted by third parties were in breach of its freedom of expression, the Chamber identified the following aspects as relevant for its analysis: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company (see paragraphs 85 et seq. of the Chamber judgment).
143. The Court agrees that these aspects are relevant for the concrete assessment of the proportionality of the interference in issue within the scope of the Court’s examination of the present case (see paragraphs 112 to 117 above).
(ii) Context of the comments
144. As regards the context of the comments, the Court accepts that the news article about the ferry company, published on the Delfi news portal, was a balanced one, contained no offensive language and gave rise to no arguments about unlawful statements in the domestic proceedings. The Court is aware that even such a balanced article on a seemingly neutral topic may provoke fierce discussions on the Internet. Furthermore, it attaches particular weight, in this context, to the nature of the Delfi news portal. It reiterates that Delfi was a professionally managed Internet news portal run on a commercial basis which sought to attract a large number of comments on news articles published by it. The Court observes that the Supreme Court explicitly referred to the fact that the applicant company had integrated the comment environment into its news portal, inviting visitors to the website to complement the news with their own judgments and opinions (comments). According to the findings of the Supreme Court, in the comment environment, the applicant company actively called for comments on the news items appearing on the portal. The number of visits to the applicant company’s portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the Supreme Court concluded that the applicant company had an economic interest in the posting of comments. In the view of the Supreme Court, the fact that the applicant company was not the writer of the comments did not mean that it had no control over the comment environment (see § 13 of the judgment as set out in paragraph 31 above).
145. The Court also notes in this regard that the “Rules of comment” on the Delfi website stated that the applicant company prohibited the posting of comments that were without substance and/or off-topic, were contrary to good practice, contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities. Such comments could be removed and their authors’ ability to post comments could be restricted. Furthermore, the actual authors of the comments could not modify or delete their comments once they were posted on the applicant company’s news portal – only the applicant company had the technical means to do this. In the light of the above and the Supreme Court’s reasoning, the Court agrees with the Chamber’s finding that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal.
146. In sum, the Court considers that it was sufficiently established by the Supreme Court that the applicant company’s involvement in making public the comments on its news articles on the Delfi news portal went beyond that of a passive, purely technical service provider. The Court therefore finds that the Supreme Court based its reasoning on this issue on grounds that were relevant for the purposes of Article 10 of the Convention.
(iii) Liability of the authors of the comments
147. In connection with the question whether the liability of the actual authors of the comments could serve as a sensible alternative to the liability of the Internet news portal in a case like the present one, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of ideas and information in an important manner, including, notably, on the Internet. At the same time, the Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of the information once disclosed, which may considerably aggravate the effects of unlawful speech on the Internet compared to traditional media. It also refers in this connection to a recent judgment of the Court of Justice of the European Union in the case of Google Spain and Google, in which that court, albeit in a different context, dealt with the problem of the availability on the Internet of information seriously interfering with a person’s private life over an extended period of time, and found that the individual’s fundamental rights, as a rule, overrode the economic interests of the search engine operator and the interests of other Internet users (see paragraph 56 above).
148. The Court observes that different degrees of anonymity are possible on the Internet. An Internet user may be anonymous to the wider public while being identifiable by a service provider through an account or contact data that may be either unverified or subject to some kind of verification – ranging from limited verification (for example, through activation of an account via an e-mail address or a social network account) to secure authentication, be it by the use of national electronic identity cards or online banking authentication data allowing rather more secure identification of the user. A service provider may also allow an extensive degree of anonymity for its users, in which case the users are not required to identify themselves at all and they may only be traceable – to a limited extent – through the information retained by Internet access providers. The release of such information would usually require an injunction by the investigative or judicial authorities and would be subject to restrictive conditions. It may nevertheless be required in some cases in order to identify and prosecute perpetrators.
149. Thus, in the case of K.U. v. Finland, concerning an offence of “malicious misrepresentation” of a sexual nature against a minor, the Court found that “[a]lthough freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others” (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). The Court in that case rejected the Government’s argument that the applicant had had the possibility of obtaining damages from the service provider, finding that this was not sufficient in the circumstances of the case. It held that there had to be a remedy enabling the actual offender to be identified and brought to justice, whereas at the relevant time the regulatory framework of the respondent State had not provided for the possibility of ordering the Internet service provider to divulge the information required for that purpose (ibid., §§ 47 and 49). Although the case of K.U. v. Finland concerned a breach classified as a criminal offence under the domestic law and involved a more sweeping intrusion into the victim’s private life than the present case, it is evident from the Court’s reasoning that anonymity on the Internet, although an important value, must be balanced against other rights and interests.
150. As regards the establishment of the identity of the authors of the comments in civil proceedings, the Court notes that the parties’ positions differed as to its feasibility. On the basis of the information provided by the parties, the Court observes that the Estonian courts, in the “pre-trial taking of evidence” procedure under Article 244 of the Code of Civil Procedure (see paragraph 40 above), have granted requests by defamed persons for the disclosure by online newspapers or news portals of the IP addresses of authors who had posted allegedly defamatory comments and for the disclosure by Internet access providers of the names and addresses of the subscribers to whom the IP addresses in question had been assigned. The examples provided by the Government show mixed results: in some cases it has proved possible to establish the computer from which the comments had been made, while in other cases, for various technical reasons, this has proved impossible.
151. According to the Supreme Court’s judgment in the present case, the injured person had the choice of bringing a claim against the applicant company or the authors of the comments. The Court considers that the uncertain effectiveness of measures allowing the identity of the authors of the comments to be established, coupled with the lack of instruments put in place by the applicant company for the same purpose with a view to making it possible for a victim of hate speech to effectively bring a claim against the authors of the comments, are factors that support a finding that the Supreme Court based its judgment on relevant and sufficient grounds. The Court also refers, in this context, to the Krone Verlag (no. 4) judgment, where it found that shifting the risk of the defamed person obtaining redress in defamation proceedings to the media company, which was usually in a better financial position than the defamer, was not as such a disproportionate interference with the media company’s right to freedom of expression (see Krone Verlags GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 32, 9 November 2006).
(iv) Measures taken by the applicant company
152. The Court notes that the applicant company highlighted the number of comments on each article on its website, and therefore the places of the most lively exchanges must have been easily identifiable for the editors of the news portal. The article in issue in the present case attracted 185 comments, apparently well above average. The comments in question were removed by the applicant company some six weeks after they were uploaded on the website, upon notification by the injured person’s lawyers to the applicant company (see paragraphs 17 to 19 above).
153. The Court observes that the Supreme Court stated in its judgment that “[o]n account of the obligation arising from law to avoid causing harm, the [applicant company] should have prevented the publication of comments with clearly unlawful contents”. However, it also held that “[a]fter the disclosure, the [applicant company had] failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative” (see § 16 of the judgment as set out in paragraph 31 above). Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments on the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication, to escape liability under the Obligations Act. The Court considers that when assessing the grounds upon which the Supreme Court relied in its judgment entailing an interference with the applicant’s Convention rights, there is nothing to suggest that the national court intended to restrict the applicant’s rights to a greater extent than that required to achieve the aim pursued. On this basis, and having regard to the freedom to impart information as enshrined in Article 10, the Court will thus proceed on the assumption that the Supreme Court’s judgment must be understood to mean that the subsequent removal of the comments by the applicant company, without delay after publication, would have sufficed for it to escape liability under domestic law. Consequently, and taking account of the above findings (see paragraph 145) to the effect that the applicant company must be considered to have exercised a substantial degree of control over the comments published on its portal, the Court does not consider that the imposition on the applicant company of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, and were thus clearly unlawful on their face, amounted, in principle, to a disproportionate interference with its freedom of expression.
154. The pertinent issue in the present case is whether the national court’s findings that liability was justified, as the applicant company had not removed the comments without delay after publication, were based on relevant and sufficient grounds. With this in mind, account must, firstly, be taken of whether the applicant company had instituted mechanisms that were capable of filtering comments amounting to hate speech or speech entailing an incitement to violence.
155. The Court notes that the applicant company took certain measures in this regard. There was a disclaimer on the Delfi news portal stating that the writers of the comments – and not the applicant company – were accountable for them, and that the posting of comments that were contrary to good practice or contained threats, insults, obscene expressions or vulgarities, or incited hostility, violence or illegal activities, was prohibited. Furthermore, the portal had an automatic system of deletion of comments based on stems of certain vulgar words and it had a notice-and-take-down system in place, whereby anyone could notify it of an inappropriate comment by simply clicking on a button designated for that purpose, to bring it to the attention of the portal administrators. In addition, on some occasions the administrators removed inappropriate comments on their own initiative.
156. Thus, the Court notes that the applicant company cannot be said to have wholly neglected its duty to avoid causing harm to third parties. Nevertheless, and more importantly, the automatic word-based filter used by the applicant company failed to filter out odious hate speech and speech inciting violence posted by readers and thus limited its ability to expeditiously remove the offending comments. The Court reiterates that the majority of the words and expressions in question did not include sophisticated metaphors or contain hidden meanings or subtle threats. They were manifest expressions of hatred and blatant threats to the physical integrity of L. Thus, even if the automatic word-based filter may have been useful in some instances, the facts of the present case demonstrate that it was insufficient for detecting comments whose content did not constitute protected speech under Article 10 of the Convention (see paragraph 136 above). The Court notes that as a consequence of this failure of the filtering mechanism, such clearly unlawful comments remained online for six weeks (see paragraph 18 above).
157. The Court observes in this connection that on some occasions the portal administrators did remove inappropriate comments on their own initiative and that, apparently some time after the events of the present case, the applicant company set up a dedicated team of moderators. Having regard to the fact that there are ample possibilities for anyone to make his or her voice heard on the Internet, the Court considers that a large news portal’s obligation to take effective measures to limit the dissemination of hate speech and speech inciting violence – the issue in the present case – can by no means be equated to “private censorship”. While acknowledging the “important role” played by the Internet “in enhancing the public’s access to news and facilitating the dissemination of information in general” (see Ahmet Yildirim, cited above, § 48, and Times Newspapers Ltd, cited above, § 27), the Court reiterates that it is also mindful of the risk of harm posed by content and communications on the Internet (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63; see also Mosley, cited above, § 130).
158. Moreover, depending on the circumstances, there may be no identifiable individual victim, for example in some cases of hate speech directed against a group of persons or speech directly inciting violence of the type manifested in several of the comments in the present case. In cases where an individual victim exists, he or she may be prevented from notifying an Internet service provider of the alleged violation of his or her rights. The Court attaches weight to the consideration that the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.
159. Lastly, the Court observes that the applicant company has argued (see paragraph 78 above) that the Court should have due regard to the notice-and-take-down system that it had introduced. If accompanied by effective procedures allowing for rapid response, this system can in the Court’s view function in many cases as an appropriate tool for balancing the rights and interests of all those involved. However, in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court’s case-law (see paragraph 136 above), the Court considers, as stated above (see paragraph 153), that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.
(v) Consequences for the applicant company
160. Finally, turning to the question of what consequences resulted from the domestic proceedings for the applicant company, the Court notes that the company was obliged to pay the injured person the equivalent of EUR 320 in compensation for non-pecuniary damage. It agrees with the finding of the Chamber that this sum, also taking into account the fact that the applicant company was a professional operator of one of the largest Internet news portals in Estonia, can by no means be considered disproportionate to the breach established by the domestic courts (see paragraph 93 of the Chamber judgment). The Court notes in this connection that it has also had regard to the domestic post-Delfi case-law on the liability of the operators of Internet news portals (see paragraph 43 above). It observes that in these cases the lower courts have followed the Supreme Court’s judgment in Delfi but no awards have been made for non-pecuniary damage. In other words, the tangible result for the operators in post-Delfi cases has been that they have taken down the offending comments but have not been ordered to pay compensation for non-pecuniary damage.
161. The Court also observes that it does not appear that the applicant company had to change its business model as a result of the domestic proceedings. According to the information available, the Delfi news portal has continued to be one of Estonia’s largest Internet publications and by far the most popular for posting comments, the number of which has continued to increase. Anonymous comments – now existing alongside the possibility of posting registered comments, which are displayed to readers first – are still predominant and the applicant company has set up a team of moderators carrying out follow-up moderation of comments posted on the portal (see paragraphs 32 and 83 above). In these circumstances, the Court cannot conclude that the interference with the applicant company’s freedom of expression was disproportionate on that account either.
(vi) Conclusion
162. Based on the concrete assessment of the above aspects, taking into account the reasoning of the Supreme Court in the present case, in particular the extreme nature of the comments in question, the fact that the comments were posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction imposed on the applicant company, the Court finds that the domestic courts’ imposition of liability on the applicant company was based on relevant and sufficient grounds, having regard to the margin of appreciation afforded to the respondent State. Therefore, the measure did not constitute a disproportionate restriction on the applicant company’s right to freedom of expression.
Accordingly, there has been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT
Holds, by fifteen votes to two, that there has been no violation of Article 10 of the Convention.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 June 2015.
Johan Callewaert Dean Spielmann
Deputy to the Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) joint concurring opinion of Judges Raimondi, Karakas, De Gaetano and Kjølbro;
(b) concurring opinion of Judge Zupancic;
(c) joint dissenting opinion of Judges Sajó and Tsotsoria.
D.S.
J.C.
JOINT CONCURRING OPINION OF JUDGES RAIMONDI, KARAKAS, DE GAETANO AND KJØLBRO
1. We agree that there has been no violation of Article 10 of the Convention. However, we would like to clarify our position as regards two issues: (1) the Court’s reading of the Supreme Court’s judgment, and (2) the principles underlying the Court’s assessment of the complaint.
2. Firstly, the Court’s reading of the Supreme Court’s judgment (see paragraphs 153-154) is decisive for the assessment of the case.
3. In reaching its decision the Supreme Court stated, inter alia, that it followed from the obligation to avoid causing harm that Delfi “should have prevented the publication of the comments with clearly unlawful contents”. Furthermore, the Supreme Court held that Delfi, after the disclosure of the comments in question, had “failed to remove the comments – the unlawful content of which it should have been aware of – from the portal at its own initiative”. The Supreme Court found that Delfi’s “inactivity [was] unlawful”, and that Delfi was liable as it had “not proved the absence of culpability” (see the extract quoted in paragraph 31 of the judgment).
4. There are two possible readings of the Supreme Court’s judgment: (1) Delfi was liable as it did not “prevent” the unlawful comments from being published, and its liability was aggravated by the fact that it did not subsequently “remove” the comments; or (2) Delfi did not “prevent” the unlawful comments from being published, and as it did not subsequently “remove” the comments without delay, it was liable for them.
5. The Court has decided to read the Supreme Court’s judgment in the second sense, thereby avoiding the difficult question of the possible liability of a news portal for not having “prevented” unlawful user-generated comments from being published. However, had the Court read the Supreme Court’s judgment in the first sense, the outcome of the case might have been different.
6. If the Supreme Court’s judgment were to be understood in the first sense, it would enshrine an interpretation of domestic legislation that would entail a risk of imposing excessive burdens on a news portal such as Delfi. In fact, in order to avoid liability for comments written by readers of its articles, a news portal would have to prevent such comments from being published (and would also have to remove any such comments that were published). This might, in practice, require an effective monitoring system, be it automatic or manual. In other words, a news portal might have to pre-monitor comments in order to avoid publishing clearly unlawful comments made by readers. Furthermore, if the liability of a news portal was closely linked to the clearly unlawful nature of the comments, without it being necessary for the plaintiff to prove that the news portal knew or ought to have known that the comments would be or had been published on the portal, the portal would in practice be obliged to act on the assumption that such comments could be made by readers and therefore to take the necessary measures to avoid them being published, which in practice would require pre-monitoring measures to be adopted.
7. Therefore, in our view, finding a news portal liable for not having “prevented” the publication of user-generated comments would in practice imply that the portal would have to pre-monitor each and every user-generated comment in order to avoid liability for any unlawful comments. This could in practice lead to a disproportionate interference with the news portal’s freedom of expression as guaranteed by Article 10.
8. Secondly, the Court should have stated more clearly the underlying principles leading it to find no violation of Article 10. Instead, the Court has adopted case-specific reasoning and at the same time has left the relevant principles to be developed more clearly in subsequent case-law.
9. In our view, the Court should have seized the opportunity to state more clearly the principles relevant to the assessment of a case such as the present one.
10. A news portal such as Delfi, which invites readers of articles to write comments that are made public on the portal, will assume “duties and responsibilities” as provided for in domestic legislation. Furthermore, it follows from Article 8 of the Convention that member States have an obligation to effectively protect the reputation and honour of individuals. Therefore, Article 10 of the Convention cannot be interpreted as prohibiting member States from imposing obligations on news portals such as Delfi when they allow readers to write comments that are made public. In fact, member States may in certain circumstances have an obligation to do so in order to protect the honour and reputation of others. Thus, member States may decide that a news portal is to be regarded as the publisher of the comments in question. Furthermore, they may prescribe that news portals may be held liable for clearly unlawful comments, such as insults, threats and hate speech, which are written by users and made public on the portal. However, in exercising their power to do so, member States must comply with their obligations under Article 10 of the Convention. Therefore, domestic legislation should not restrict the freedom of expression by imposing excessive burdens on news portals.
11. In our view, member States may hold a news portal, such as Delfi, liable for clearly unlawful comments such as insults, threats and hate speech by readers of its articles if the portal knew, or ought to have known, that such comments would be or had been published on the portal. Furthermore, member States may hold a news portal liable in such situations if it fails to act promptly when made aware of such comments published on the portal.
12. The assessment of whether the news portal knew or ought to have known that clearly unlawful comments may be or have been published on the portal may take into account all the relevant specific circumstances of the case, including the nature of the comments in question, the context of their publication, the subject matter of the article generating the comments, the nature of the news portal in question, the history of the portal, the number of comments generated by the article, the activity on the portal, and how long the comments have appeared on the portal.
13. Therefore, holding a news portal liable for clearly unlawful comments such as insults, threats and hate speech under such circumstances will in general be compatible with Article 10 of the Convention. Furthermore, member States may also hold a news portal liable if it has failed to take reasonable measures to prevent clearly unlawful comments from being made public on the portal or to remove them once they have been made public.
14. In our view, these underlying principles should have been stated more clearly in the Court’s judgment.
15. Having regard to the clearly unlawful nature of the comments in question, as well as the fact that they remained on the news portal for six weeks before they were removed, we do not find it disproportionate for the Supreme Court to find Delfi liable as it had “failed to remove the comments – the unlawful content of which it should have been aware of – from the portal at its own initiative”. In fact, not being aware of such clearly unlawful comments for such an extended period of time almost amounts to wilful ignorance, which cannot serve as a basis for avoiding civil liability.
16. Therefore, we did not have any problems voting together with the majority. However, the Court should, in our view, have seized the opportunity to clarify the principles underlying its assessment, irrespective of the sensitive nature of the questions raised by the application.
CONCURRING OPINION OF JUDGE ZUPANCIC
In general, I agree with the outcome in this case. However, I would like to add a few historical and simply ethical observations.
The substance of the case concerns the protection of personal integrity, that is, of personality rights in Estonia and also, after this case, elsewhere in Europe. For many years personality rights were, so to speak, discriminated against vis-à-vis the freedom of expression, specifically the freedom of the press. In my concurring opinion in the von Hannover v. Germany (no. 1) case (no. 59320/00, ECHR 2004-VI), I wrote that “[t]he Persönlichkeitsrecht doctrine imparts a higher level of civilised interpersonal deportment”, and I believe the facts of the case at hand confirm this finding.
The problem derives from the great dissimilarity between the common law on the one hand and the Continental system of law on the other hand. The notion of privacy in American law, for example, only derived from the seminal article by Warren and Brandeis, [3] who happened, because he had been schooled in Germany, to be able to instruct himself about personality rights in German. The notion of privacy as a right to be left alone, especially by the media, was, until that time, more or less unfamiliar to the Anglo-American sphere of law. The article itself addressed precisely the question of abuse by the media. Obviously, at that time there were only printed media but this was sufficient for Justice Brandeis to show his own extreme indignation.
On the other hand, the Continental tradition concerning personality rights goes back to Roman law’s actio iniurirarum, which protected against bodily injury but also against non-bodily convicium, adtemptata pudicitia and infamatio. [4] Thus, personality rights can be seen as the predecessor and the private-law equivalent of human rights. Protection, for example, against defamation and violations of other personality rights has a long and imperative tradition on the Continent, whereas libel and slander are the weak corresponding rights in Anglo-American law.
According to Jean-Christophe Saint-Paul:
“Les droits de la personnalité constituent l’ensemble des prérogatives juridiques portant sur des intérêts moraux (identité, vie privée, honneur) et le corps humain ou les moyens de leur réalisation (correspondances, domicile, image), exercés par des personnes juridiques (physiques ou morales) et qui sont sanctionnés par des actions en justice civiles (cessation du trouble, réparation des préjudices) et pénales.
Au carrefour du droit civil (personnes, contrats, biens), du droit pénal et des droits de l’homme, et aussi des procédures civile et pénale, la matière fait l’objet d’une jurisprudence foisonnante, en droit interne et en droit européen, fondée sur des sources variées nationales (Code civil, Code pénal, Loi informatique et libertés, Loi relative à la liberté de la presse) et internationales (CESDH, PIDCP, DUDH, Charte des droits fondamentaux), qui opère une balance juridictionnelle entre la protection de la personne et d’autres valeurs telles que la liberté d’expression ou les nécessités de la preuve.” [5]
The situation in Germany is as follows:
“The general right of personality has been recognised in the case law of the Bundesgerichtshof since 1954 as a basic right constitutionally guaranteed by Articles 1 and 2 of the Basic Law and at the same time as an ‘other right’ protected in civil law under § 823 (1) of the BGB [German Civil Code] (constant case law since BGHZ [Federal Court of Justice, civil cases] 13, 334, 338 …). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one’s own picture (§§ 22 ff. of the KUG [Artistic Copyright Act]) and the right to one’s name (§ 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them.” [6]
Thus, it is almost difficult to believe that this private-law parallel to the more explicit constitutional-law and international-law protection of human personality rights has been not only disregarded but often simply overridden by contrary considerations.
Also, in my opinion, it is completely unacceptable that an Internet portal or any other kind of mass media should be permitted to publish any kind of anonymous comments. We seem to have forgotten that “letters to the editor”, not so long ago, were double-checked as to the identity of the author before they were ever deemed publishable. The Government argued (see paragraph 90 of the judgment) that the biggest international news portals did not allow anonymous (that is, unregistered) comments and referred to an opinion that there was a trend away from anonymity. At the same time, anonymous comments tended to be more insulting than the comments by persons who had registered, and harsh comments attracted more readers. The Government argued that Delfi had been notorious for exactly this reason.
On the other hand, in the case of Print Zeitungverlag GmbH v. Austria (no. 26547/07, judgment delivered on 10 October 2013, the same day as the Chamber judgment in Delfi) the Court held that an award of damages amounting to 2,000 euros (EUR) for the publication of an anonymous letter in print was – and rightly so! – compatible with its previous case-law. [7]
The mass media used to be run according to the obvious principle that the great freedom enjoyed by the press implied a commensurate level of responsibility. To enable technically the publication of extremely aggressive forms of defamation, all this due to crass commercial interest, and then to shrug one’s shoulders, maintaining that an Internet provider is not responsible for these attacks on the personality rights of others, is totally unacceptable.
According to the old tradition of the protection of personality rights, which again go back to Roman law, the amount of approximately EUR 300 awarded in compensation in the present case is clearly inadequate as far as damages for the injury to the aggrieved persons are concerned. The mere comparison with the above-mentioned case of Print Zeitungverlag GmbH v. Austria, which involved only two aggrieved persons and a printed medium with very limited distribution, demonstrates that a much higher award of damages was called for in the present case.
I do not know why the national courts hesitate in adjudicating these kinds of cases and affording strict protection of personality rights and decent compensation to those who have been subject to these kinds of abusive verbal injuries, but I suspect that our own case-law has something to do with it.
However, the freedom of expression, like all other freedoms, needs to end precisely at the point where somebody else’s freedom and personal integrity is negatively affected.
JOINT DISSENTING OPINION OF
JUDGES SAJÓ AND TSOTSORIA
To explain our dissent, we will offer a detailed and traditional analysis of the case, as is common in the Court’s practice. There are, however, some broader issues which are more important than our dissatisfaction with this judgment’s troubling departure from the prevailing understanding of the case-law. These fundamental concerns will be spelled out first.
I.
Collateral censorship
1. In this judgment the Court has approved a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries [8] (that is, hosts who provide their own content and open their intermediary services for third parties to comment on that content). We find the potential consequences of this standard troubling. The consequences are easy to foresee. For the sake of preventing defamation of all kinds, and perhaps all “illegal” activities, all comments will have to be monitored from the moment they are posted. As a consequence, active intermediaries and blog operators will have considerable incentives to discontinue offering a comments feature, and the fear of liability may lead to additional self-censorship by operators. This is an invitation to self-censorship at its worst.
2. We regret that the Court did not rely on the prophetic warnings of Professor Jack Balkin. [9] As Professor Balkin has demonstrated, the technological infrastructure behind digital communication is subject to less visible forms of control by private and public regulators, and the Court has just added another such form to this panoply. Governments may not always be directly censoring expression, but by putting pressure and imposing liability on those who control the technological infrastructure (ISPs, etc.), they create an environment in which collateral or private-party censorship is the inevitable result. Collateral censorship “occurs when the state holds one private party A liable for the speech of another private party B, and A has the power to block, censor, or otherwise control access to B’s speech”. [10] Because A is liable for someone else’s speech, A has strong incentives to over-censor, to limit access, and to deny B’s ability to communicate using the platform that A controls. In effect, the fear of liability causes A to impose prior restraints on B’s speech and to stifle even protected speech. “What looks like a problem from the standpoint of free expression … may look like an opportunity from the standpoint of governments that cannot easily locate anonymous speakers and want to ensure that harmful or illegal speech does not propagate.” [11] These technological tools for reviewing content before it is communicated online lead (among other things) to: deliberate overbreadth; limited procedural protections (the action is taken outside the context of a trial); and shifting of the burden of error costs (the entity in charge of filtering will err on the side of protecting its own liability, rather than protecting freedom of expression).
3. The imposition of liability on intermediaries was a major obstacle to freedom of expression for centuries. It was the printer Harding and his wife who were arrested for the printing of the Drapier’s Letters and not the anonymous author (Jonathan Swift), who continued to preach undisturbed. It was for this reason that exempting intermediaries from liability became a crucial issue in the making of the first lasting document of European constitutionalism, the Belgian Constitution of 1831. [12] This is the proud human rights tradition of Europe that we are called upon to sustain.
The general context
4. It is argued in the judgment that the Court is called upon to decide the case at hand, but this is only part of our duty and such an argument is dangerous in its one-sidedness. As the Court summarised matters in Rantsev v. Cyprus and Russia (no. 25965/04, § 197, ECHR 2010): [13]
“[The Court’s] judgments serve not only to decide those cases brought before it but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties (see Ireland v. the United Kingdom, 18 January 1978, BAILII: [1978] ECHR 1, § 154, Series A no. 25; Guzzardi v. Italy, 6 November 1980, BAILII: [1980] ECHR 5, § 86, Series A no. 39; and Karner v. Austria, no. 40016/98, § 26, ECHR 2003-IX). Although the primary purpose of the Convention system is to provide individual relief, its mission is also to determine issues on public-policy grounds in the common interest, thereby raising the general standards of protection of human rights and extending human rights jurisprudence throughout the community of the Convention States (see Karner, cited above, § 26; and Capital Bank AD v. Bulgaria, no. 49429/99, §§ 78 to 79, ECHR 2005-XII).”
5. Further, as the Court stated in Animal Defenders International v. the United Kingdom ([GC] no. 48876/08, § 108, ECHR 2013):
“It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it (James and Others, § 36).”
6. The present judgment expressly deals with the general context (see the “Preliminary remarks” section starting at paragraph 110) but without determining “issues on public-policy grounds”. The Internet is described as an “unprecedented platform” and while there is reference to benefits, it is described as posing “certain dangers”, the advantages being scarcely mentioned. We disagree. The Internet is more than a uniquely dangerous novelty. It is a sphere of robust public discourse with novel opportunities for enhanced democracy. Comments are a crucial part of this new enhanced exchange of ideas among citizens. This has been the Court’s understanding so far in its case-law (see Ashby Donald and Others v. France, no. 36769/08, § 34, 10 January 2013, and also Wegrzynowski and Smolczewski v. Poland, no. 33846/07, § 58, 16 July 2013). [14]
7. It is noteworthy in this context that the thirteen lines of comparative-law analysis in this judgment do not refer to specific national practices. While there are novel restrictions on posting on the Internet in the recent legislation of a couple of European countries, the Estonian approach is rather unique. In the overwhelming majority of the member States of the Council of Europe, and also in genuine democracies all over the world, the regulatory system (in conformity with the expectations of the rule of law) is based on the concept of actual knowledge. A safe harbour is provided by the rule of notice and action (primarily “notice and take down”). This Court has not been known for developing rights restrictions which go against the prevailing standards of the member States, except in a few cases where a narrow majority found that deeply held moral traditions justified such exceptionalism.
Consequences
8. The Court has endorsed the standard of the Estonian Supreme Court, namely that active intermediaries must remove comments “without delay” after publication (see paragraph 153 of the judgment), and not upon notice or on other grounds linked to actual knowledge. Active intermediaries are therefore invited to exercise prior restraint. Moreover, member States will be forced to introduce a similar approach because otherwise, according to the logic of the present judgment, there is no proper protection for the rights of those who feel defamed by comments. To avoid trouble, for active intermediaries the safe harbour will simply be to disable comments. [15]
9. The Court is aware of the unhappy consequences of adopting a standard that can be satisfied only by constant monitoring of all comments (and implicitly, all user-generated content). For the Court, “the case does not concern other fora on the Internet … or a social media platform … [where] the content provider may be a private person running the website or a blog as a hobby” (see paragraph 116 of the judgment). It is hard to imagine how this “damage control” will help. Freedom of expression cannot be a matter of a hobby.
II.
Delfi’s role as active intermediary
10. Turning to the specific case, we find that the Estonian Supreme Court did not provide relevant and sufficient reasons for the very intense interference with the applicant company’s rights and did not apply an appropriate balancing exercise. This amounts to a violation of the Convention.
11. This case is about interference with the freedom of expression of Delfi as an active intermediary. Delfi published an article on the destruction of ice roads by a public service ferry company on its news portal and it enabled comments on the article. It is undisputed that there was nothing illegal in the article. It was accepted by the national courts, and we could not agree more, that Delfi was engaged in journalistic activities and that the opening up of a comment space formed part of the news portal. However, the news portal was not the author of the unedited comments. Furthermore, at least in the Chamber’s view (see paragraph 86 of its judgment), the debate concerned a matter of “a certain degree” of public interest. We believe that the article dealt with a matter of public interest and that the comments, even the impugned ones, were part of the debate even though they may have been excessive or impermissible. Delfi was held liable under the Civil Code of Estonia for defamation originating from comments posted in the comment space attached to the article. This concerned twenty comments.
The nature of the comments
12. Throughout the whole judgment the description or characterisation of the comments varies and remains non-specific. The Supreme Court of Estonia has its own interpretation: it refers to “insult in order to degrade” and “degrade human dignity and ridicule a person,” and finds Delfi liable for disrespecting the honour and good name of the person concerned. According to paragraph 117 of the present judgment, “the impugned comments … mainly constituted hate speech and speech that directly advocated acts of violence” [16] (see also paragraph 140). However, according to paragraph 130 (“the legitimate aim of protecting the reputation and rights of others”), the offence at issue concerned the reputation and unspecified rights of others. It is not clear to which comments the Court is referring. Does the comment “a good man lives a long time, a shitty man a day or two” (comment no. 9 – see paragraph 18 of the judgment) amount to advocating violence? [17]
13. It is unfortunate that the characterisation of the comments remains murky. What is really troubling here is never spelled out: that some of the comments are racist. Comment no. 2 is a recital of anti-Semitic stereotypes ending with a reference to the annihilation by fire of the addressee as a Jew.
14. We are not going to discuss here to what extent some of the references satisfy the strict requirements of incitement to violence, given the nature of the Internet. Does a call for violence or a wish to see someone killed have the same effects on the Internet as a similar statement made in a face-to-face encounter in a situation like the present one? This is not a call to arms by an extremist group. The answer has to be established by means of a proper judicial process. No criminal action against the commenters was taken, notwithstanding the reference to lynching. [18] The question of the extent to which such comments amount to a real threat would have deserved proper analysis. However, the judgment simply accepts the findings of the Supreme Court, which says only that the illegality of the comments is manifest (and then, like the judgment, characterises them in different ways).
15. We will also refrain from an analysis of the impact of the hateful messages regarding their capacity to incite imminent violence or even to build up lasting hatred resulting in harassment or real threats against L. Racism and constraining others to live in an environment full of hatred and real threats cannot find refuge in freedom of expression. This legitimate concern must not, however, blind those who are called upon to take action, and they must be reminded that “hate-speech regulations put actual feelings, often honorable ones, ahead of abstract rights – which seems like common sense. It takes an active effort to resist the impulse to silence the jerks who have wounded you.” [19]
Interference and the right of active intermediaries
16. There is general agreement that the Estonian Supreme Court’s judgment interfered with Delfi’s freedom of expression, though the nature of the right remains somewhat non-specific. In our view the rights concerned are the rights of the press. User comments may enrich the article. The rights of an active intermediary include the right to enable others to impart and receive information.
Lawfulness of the interference: the problem of foreseeability
17. According to the prevailing methodology of the Court, the next question to be asked concerns the lawfulness of the measure. This entails a review of the foreseeability of the law. It is accepted by the Court that the applicable law was the Civil Code and not the Information Society Services Act. The Information Society Services Act apparently exempts service providers and provides a “safe harbour” in the sense that once the service provider becomes aware of the illegal content and removes it expeditiously, it cannot be held liable. Neither the domestic authorities nor the Court explain why the provision of binding European law that is part of the national legal system is immaterial, except to say that the present case concerns a matter of publication rather than data storage. It is, of course, not for this Court to interpret European Union law as such. This does not mean that we should not regard it as part of the domestic system, attributing to it its proper constitutional weight. Be that as it may, section 10 (liability for storage) of the Information Society Services Act provides a “safe harbour” rule for service providers in the case of storage. In these circumstances, a reasonable justification should be required for the choice of the higher level of liability under the Civil Code. The (highly problematic) choice of a publisher’s liability does not address the issue of the supremacy of European Union law or the problem of lex specialis. It is possible that where the information storage provider generates content, the Information Society Services Act is inapplicable, but this must be demonstrated and must also be foreseeable. Moreover, the service provider in the present case did not generate the impugned content: that content was user-generated. To argue that the commercial nature of the data storage brings the activity within the liability regime applicable to publishers is not convincing. Storage is considered to be a commercial activity but that did not change the equation for the Information Society Services Act, which allowed a “safe harbour” regime.
18. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV). [20] A legal adviser could not have informed Delfi with sufficient certainty that the Directive on legal aspects of information society services did not apply. The applicable law was not obvious, to the extent that even in 2013 a court in Cyprus found it necessary to ask the Court of Justice of the European Union for a preliminary ruling in a related matter, namely the liability of news portal publishers (see Case C-291/13, Papasavvas, CJEU). If there was uncertainty in 2013 in the European Union on a similar but less complicated matter, which was clarified in 2014, how could learned counsel have been sufficiently certain in 2006?
19. More importantly, it was not foreseeable that the applicant company’s liability under the Civil Code would be that of a publisher. The Supreme Court judgment itself refers to another Supreme Court judgment of 21 December 2005. That judgment, perhaps already available to Delfi on 24 January 2006 (the date of the article), was summarised by the Supreme Court as follows:
“[F]or the purposes of section 1047 of the Obligations Act, disclosure [avaldamine] means communication of information to third parties and the discloser is a person who communicates the information to third parties. … in the case of publication [avaldamine] of information in the media, the discloser/publisher [avaldaja] can be a media company as well as the person who transmitted the information to the media publication.”
The Supreme Court applied this consideration in the following way:
“Publishing of news and comments on an Internet portal is also a journalistic activity. At the same time, because of the nature of Internet media, it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication. While the publisher is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the writer of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [väljaandja] of printed media and an Internet portal operator are publishers/disclosers [avaldajad] as entrepreneurs.”
20. This (too) raises serious concerns as to the foreseeability of the Civil Code as applied in the present case. The Supreme Court clearly states that “it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication”. The Internet portal operator is called a “publisher/discloser” in the English translation. The term used in the original Estonian does not look the same as that used for a publisher (“väljaandja”) but appears to be a different one (“avaldajad”). The applicant company argued that other “disclosers” or disseminators (libraries, bookstores) were not held to be publishers under existing tort law. Why would one assume that an Internet operator falls under the duty of care applicable to “väljaandja” instead of “avaldajad”? There is a contradiction here that hampers foreseeability. As the Chamber rightly acknowledged (see paragraph 75 of its judgment), the text of the relevant provisions of the Constitution, the Civil Code (General Principles) Act and the Law of Obligations Act was “quite general and lack[ed] detail”. The provisions of the Law of Obligations Act are all directed at a person or entity that defames – the tortfeasor, in this instance, being the author of the comments in question on the applicant company’s website – and do not directly address the novel situation of an intermediary providing a platform for such expressive activity while not being the author or a traditional publisher. Only divine legal counsel could have been sufficiently certain that a portal operator would be liable for a comment it was not aware of, under a kind of strict liability that applied to publishers (editors) who operated in full knowledge of the whole publication. It is noteworthy that the three competent levels of jurisdiction applied three different theories of liability. Vaguely worded, ambiguous and therefore unforeseeable laws have a chilling effect on freedom of expression. A troubling uncertainty persists here. [21]
21. The Court has previously held that “the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned” (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63). This point of principle provides an important benchmark when examining whether the application of domestic law in the present case was reasonably foreseeable for the applicant company, as regards user-generated content on its website. In Recommendation CM/Rec(2011)7 on a new notion of media the Committee of Ministers noted that “[t]he roles of each actor can easily change or evolve fluidly and seamlessly” and called for a “differentiated and graduated approach”.
Necessary in a democratic society
22. The next question to answer is to what extent the measure aimed at the avoidance of hate speech [22] (which was the most likely justification for the interference, at least in the Court’s view, but not that of the domestic authorities – see paragraph 140 of the judgment) was necessary in a democratic society. [23] The reference to the conflict between Article 8 and Article 10 rights in paragraph 139 points to the applicability of a balancing exercise with a wider margin of appreciation.
23. The Court first states, and we agree, that some of the impugned statements are not protected by the Convention. That does not in itself solve the problem, as one cannot, in the circumstances of the case, equate the expressions used by the commenters with the activities of an active intermediary.
Shift to a “relevant and sufficient reasons” analysis
24. The Court considers in paragraph 142 of the judgment that within the proportionality analysis its task is to examine “[i]n the light of the Supreme Court’s reasoning … whether the domestic courts’ finding of liability on the part of the applicant company was based on relevant and sufficient grounds in the particular circumstances of the case (see paragraph 131 above)”. No reference is made here to the established principle that the Court, in the exercise of its supervisory role, is not satisfied if the respondent State exercised its discretion only reasonably, carefully and in good faith. Sufficient reasons are more than simply reasonable.
25. More importantly, the “relevant and sufficient grounds” test is only part of the proportionality analysis. [24] Once the Court has found that the reasons given are relevant and sufficient, the proportionality analysis begins rather than ends. The “relevant and sufficient grounds” test is a threshold question to determine whether and how the margin of appreciation is to be applied; it is relevant in the determination of the existence of a pressing social need (see all the authorities cited in paragraph 131 of the judgment). Why is there a need to determine that the grounds relied upon by the domestic authorities were relevant and sufficient (which is more than simply reasonable – see above)? Because, as the Court has always said, and as it also reiterates in this case (see paragraph 131), “the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts …” (The Court did not go into an evaluation of the national authorities’ assessment of the relevant facts, although this consideration might have been relevant.)
26. The Court has concluded that the Estonian Supreme Court did provide relevant and sufficient reasons for the level of liability it applied. It reached this conclusion after having considered the following relevant points: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the applicant company’s liability, and the consequences of the domestic proceedings for the applicant company. These may be relevant, but there may be other relevant considerations as well. We will address only the sufficiency of some of these elements.
Publishers’ liability extended: base economic interest
27. The Estonian Supreme Court’s judgment is based on the assumption that an active intermediary is a publisher. The case-law of the Court has so far pointed in the opposite direction. [25] The international law documents cited by the Court emphasise the importance of differentiation, given the specific nature of Internet technology. It has already been mentioned that such differentiation had been recognised a few months previously by the Estonian Supreme Court. However, in the present case, the Estonian Supreme Court equated publishers with active intermediaries: “because of [their] economic interest in the publication of comments, both a publisher of printed media and an Internet portal operator are publishers/disclosers as entrepreneurs” (quoted in paragraph 112 of the judgment). The Court sees no reason to call into question the above approach, although it notes there has been “a certain development in favour of distinguishing between the legal principles regulating the activities of the traditional print and audiovisual media on the one hand and Internet-based media operations on the other. … Therefore, the Court considers that because of the particular nature of the Internet, the ‘duties and responsibilities’ that are to be conferred on an Internet news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher, as regards third-party content” (see paragraph 113). We could not agree more, but for us it is impossible to see how a recognition of difference may result in eliding publishers and active intermediaries on the sole basis of their commercial nature. The Court seems to accept as relevant and sufficient the position of the Estonian Supreme Court. In this approach, economic interest is sufficient for the identification of the active intermediary with a publisher, although the two were considered to be different just a sentence earlier. No explanation is offered as to how this is compatible with the point of reference of the Court, namely the Committee of Ministers’ Recommendation CM/Rec(2011)7 (quoted in paragraph 46 of the judgment), which calls for a “graduated approach” to apply to the intermediary. The additional reasons referred to in paragraphs 115-117 concern the nature of the expression and the size of the intermediary, which are neither relevant nor sufficiently connected to the liability of a traditional publisher.
28. To find that responsibility of the press (or of any speaker, for that matter) is enhanced by the presence of an economic interest does not sit comfortably with the case-law. It is true that the margin of appreciation is broader in the commercial sphere (see Mouvement raëlien suisse v. Switzerland [GC], no 16354/06, § 61, ECHR 2012). “It is however necessary to reduce the extent of the margin of appreciation when what is at stake is not a given individual’s purely ‘commercial’ statements, but his participation in a debate affecting the general interest” (see Hertel v. Switzerland, 25 August 1998, § 47, Reports of Judgments and Decisions 1998-VI). The fact that the original article and the comment space (offered to the general public for free!) is part of the economic activity of a news portal operator does not change the equation. The article and the related, dedicated comment space are protected because they facilitate and take part in a debate on a matter of public interest.
29. Over the last three hundred years, ideas have been generated for money and this has never been held to reduce the level of protection otherwise granted to speech. We do not live in the aristocratic world of the Roman auctor who could afford not to care about the financial return on ideas (though very often being dependent on imperial pleasure). It cannot be held against a newspaper or publisher that they operate an outlet as a commercial enterprise. One cannot expect the production of ideas for free. There will be no generation of ideas without adequate financial means; the material reward and the commercial nature of the press enterprise are not (and cannot be) grounds for diminishing the level of protection afforded to the press. Information is costly; its efficient communication is not a mere hobby. The same platform that has been understood as commercial, and thus subject to increased liability, is also a platform for enhanced, interactive discourse on a matter of public interest. This aspect has not been taken into consideration in the balancing exercise.
30. However, the Court does provide at least one relevant consideration for extending the liability of an active intermediary. It is certainly true that the active intermediary can exercise control over the comments that appear on its site and it is also true that by creating a space for comments, and inviting users to participate, it engages in an expressive activity that entails responsibility. But the nature of the control does not imply identification with a traditional publisher.
31. There are additional differences between a publisher (understood here as a newspaper editor, someone who controls content) and an active intermediary:
(a) in a newspaper the journalist is typically an employee (although there are good reasons to protect a journalist against his or her editor/employer); and
(b) in principle, the editor is in a position to know in advance the content of an article to be published and has the decision-making power and the means to control the publication in advance.
Contrary to the case of a publisher, these elements are only partially present in the case of active intermediaries who host their own content and actively monitor all data (that is to say, are in the position to read it and remove it after the data are made accessible), as in the case of Delfi. The active intermediary has prior control only to the extent that this is made possible by a filtering mechanism. It also has the power to remove a message or block access to it. However, in normal situations the active intermediary has no personal control over the person who posts the message. The commenter is not the employee of the publisher and in most cases is not known to the publisher. The publication occurs without the decision of the editor. Hence the level of knowledge and control differs significantly.
32. Control presupposes knowledge. In this regard the difference between the editor/publisher and the active intermediary is obvious.
The level of responsibility
33. While Delfi cannot be defined as a publisher, the company does voluntarily provide an opportunity for comments and, even if this activity is a matter of freedom of expression of a journalistic nature, this does not exempt the activity from liability. The Information Society Services Act does envisage such liability, among other things for storage, as is the case here. The Act bases liability on “actual knowledge” and entails a duty of expeditious removal. The Court found this to be insufficient.
34. The Court finds it to be a relevant and sufficient consideration that the Supreme Court limited the responsibility of the applicant company to post-publication liability. However, as quoted in paragraph 153 of the judgment, the Supreme Court stated that the applicant company “should have prevented the publication of comments”. The fact that it “also held” that there was a duty of removal after the disclosure does not change the first statement. Both pre- and post-disclosure liability are being advocated here and this cannot be disregarded when it comes to the evaluation of “sufficient reasons”. [26] It was under this standard that Delfi was found to be at fault for the disclosure of the information, which could not have been undone by removal upon request.
35. The duty to remove offensive comments without actual knowledge of their existence and immediately after they are published means that the active intermediary has to provide supervision 24/7. For all practical purposes, this is absolute and strict liability, which is in no sense different from blanket prior restraint. No reasons are given as to why only this level of liability satisfies the protection of the relevant interests.
36. Are there sufficient reasons for this strict liability, [27] disguised by the fault rules of the Civil Code? The Court reviewed the precautionary measures applied by Delfi and found them inadequate. These were fairly standard measures: a disclaimer as to illegality, a filtering mechanism, the separation of the comment space from the article, and immediate removal upon notice. It was decisive for the Court that the filtering mechanism failed. There is no review of the adequacy of the filtering mechanism (was it state-of-the-art; can there be a duty to apply state-of-the-art systems; is there any reason for being held liable with a state-of-the-art filtering system?). The Court itself finds that filtering must have been a simple task and that the system failed. No expert opinion, no cross-examination. We are simply assured that setting up a dedicated team of moderators is not “private censorship”. There is no consideration of the possibility of less intrusive measures; only removal “without delay”, that is, upon posting (see paragraph 159), satisfies the goal of eliminating hate speech and its progeny. [28] This insatiable appetite for preventive protection results in circular reasoning: a publisher has a similar liability, therefore an active intermediary is like a publisher.
37. Neither the domestic courts nor the judgment provide sufficient and relevant reasons for a de facto strict liability rule. The Court was satisfied that it could find relevant and sufficient reasons in the Estonian Supreme Court’s judgment in view of the extreme nature of the comments, the nature of the commercial operation, the insufficiency of the measures applied by the applicant company, the interest in ensuring a realistic prospect of the authors of such comments being held liable, and the mildness of the sanction. Apparently these are the reasons that compelled the Court to endorse constructive knowledge. The Court found that the absolute duty of immediate take-down on publication (as applied to the applicant company) was proportionate to the aim of protecting individuals against hate speech.
38. We would claim, in conformity with all the international documents cited, that an active intermediary which provides space for comments cannot have absolute liability – meaning an absolute duty of knowledge or, in practice, construed (constructive) knowledge. The protection of freedom of expression cannot be turned into an exercise in imposing duties. The “duties and responsibilities” clause of Article 10 § 2 is not a stand-alone provision: it is inserted there to explain why the exercise of the freedom in question may be subject to restrictions, which must be necessary in a democratic society. It is only part of the balance that is required by Article 10 § 2.
Balancing (lack of)
39. If one applies a balancing approach, then the other side of the balance must also be considered. According to the case-law, there must be proper consideration of the following factors, among others:
– the interference concerns the press and journalism. Delfi pursued journalistic activities, both in providing a news portal and by attaching a comment space to an article. Journalism is not exempt from liability, but it triggers stricter scrutiny. “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 and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism” (Stoll v. Switzerland [GC], no. 69698/01, § 103, ECHR 2007-V). [29] There is no consideration of good faith in the judgment. Moreover, when it comes to online journalism and the responsibility of an active intermediary, due consideration must be given to the role of self-regulation of the profession;
– the Court has held that “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild v. Denmark, 23 September 1994, § 35, Series A no. 298). The Court has found this to be a relevant principle and we agree that this is of importance for the press, including news portals and active intermediaries. However, this principle is simply not discussed in the judgment;
– the opening of a comment space provides a forum for the expression of views concerning public matters. As such it contributes to more robust speech, and enables others to receive and impart information that does not depend on centralised media decisions. Any restriction imposed on the means necessarily interferes with the right to receive and impart information (see, for example, Öztürk v. Turkey [GC], no. 22479/93, § 49, ECHR 1999-VI);
– the debate was about a matter of public interest. The comments related to the highly controversial behaviour of a large corporation.
40. The Court is reluctant to consider the possibility of less intrusive means, but in our view at least some justification is needed to explain why only the equivalent of prior restraint and absolute liability satisfies the non-specific duties and responsibilities of active intermediaries.
41. Without speculating on the outcome of the balancing analysis, we note that these considerations have been left out. Where part of the required considerations were not included in the balancing exercise carried out by the domestic court, the Court must find a violation.
42. We do not intend to close our eyes to the problem of racist speech. The fact that the comment space technically facilitated the dissemination of racism should be part of the proportionality analysis. In fact, the comment space facilitates the dissemination of all views equally. However, we accept, even without specific evidence, that the more comments there are, the higher the likelihood that racist comments are made. We accept this, though only as a hypothesis, as no evidence to this effect was produced in the proceedings, or referred to by the Court.
43. Even assuming such increased likelihood of racist comments on comment sites (once again, a matter subject to proof), it remains appropriate to consider what is the proper level of care in the face of such risk. Perhaps the filtering mechanism was inadequate to meet this challenge. This was the position taken by the Court, without defining what the appropriate level of care would have been in 2006 in Estonia. We do not know and cannot know. The Court cannot replace the lack of a domestic analysis with its own analysis. Moreover, it is not for the Court to take on the role of national legislation. We cannot rule out that the need to fight racist speech (a matter of public order and not simply a personality right) might dictate a duty of care that would impose duties beyond the measures applied by Delfi. But the task of the Court is to determine whether the interference by the domestic authorities was actually based on proper and credible grounds. These are absent here; hence there was a violation of the Convention.
APPENDIX
We trust that this is not the beginning (or the reinforcement and speeding up) of another chapter of silencing and that it will not restrict the democracy-enhancing potential of the new media. New technologies often overcome the most astute and stubborn politically or judicially imposed barriers. But history offers discouraging examples of censorial regulation of intermediaries with lasting effects. As a reminder, here we provide a short summary of a censorial attempt that targeted intermediaries.
In Reformation England, the licensing system of the Catholic Church was taken over by the State and it became a State tool for control of all printed publications. Licensing provided the Crown with “censorship prior to publication and easy conviction of offenders”. [30] These laws cut seditious material off at the place of mass production – the printer. Initially involving prosecution by the Star Chamber, the licensing scheme punished any printer who failed to receive a licence for the material he intended to print (a licence conditional on royal approval). With the abolition of the Star Chamber there was a brief end to the licensing laws during the English Civil War. Parliament, however, did not like the spreading of radical religious and political ideas. It decided to replace Crown censorship with its own, also in order to protect the vested business interests of the printers’ guild. The result was the Licensing Order of 14 June 1643, which reintroduced for Parliament’s benefit the previously despised order of the Star Chamber Decree (pre-publication licensing; registration of all printed material with the names of author, printer and publisher; search, seizure and destruction of any books offensive to the government; and punishment of printers and publishers). Post-revolution, people tend to reinvent the same tools of oppression that the revolutionaries stood up against. (See also the Alien and Sedition Act enacted in the United States.) The Stationers’ Company was given the responsibility of acting as censor, in return for a monopoly on the printing trade. The licensing system, with the financial interest of the publishers’/printers’ guild, was a more effective censor than seditious libel laws.
This restored licensing system became John Milton’s target in Areopagitica: A Speech for the Liberty of Unlicensed Printing in November 1644. It was resistance to the self-censorship imposed on intermediaries (the printers) that produced Areopagitica, the first and most important manifesto of freedom of expression. Areopagitica attempted to persuade Parliament that licensing had no place in the free pursuit of truth. It argued that an unlicensed press would lead to a marketplace of ideas in which truth might prevail. It could not undo the bigotry of Parliament. We hope that it will have more success today.
[1]. This is an allusion to an Estonian saying, “every ram has its Michaelmas”, which historically refers to slaughtering wethers (castrated rams) in autumn around Michaelmas day (29 September) but is nowadays used to mean that one cannot escape one’s fate.
[2]. The Estonian words avaldama/avaldaja mean both publish/publisher and disclose/discloser.
[3]. Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy”, 4(5) Harvard Law Review 193-201 (1890). The article is available in its entirety at http://www.jstor.org/stable/1321160?origin=JSTOR-pdf&seq=1#page_scan_tab_contents (Updated on 23 March 2015)
[4]. See Personality Rights in European Torts Law, Gert Brüggemeier, Aurelia Colombi Ciacchi, Patrick O’Callaghan (eds.), Cambridge University Press, Cambridge 2010, p. 18 and note 51.
[5]. See Droits de la personnalité, Jean-Christophe Saint-Paul (ed.), 2013 at http://boutique.lexisnexis.fr/jcshop3/355401/fiche_produit.htm (Updated on 23 March 2015). Translation: “Personality rights are the set of legal prerogatives relating to moral interests (identity, private life, honour) and the human body or the means of realising them (correspondence, home, image); they are exercised by anyone with legal personality (natural persons or legal entities) and are enforced by means of actions in the civil courts (injunctions to desist, claims for damages) and the criminal courts.
This issue, at the crossroads of civil law (persons, contracts, property), criminal law and human-rights law and also civil and criminal procedure, has given rise to an extensive body of case-law at domestic and European level, based on various sources of national law (Civil Code, Criminal Code, Data Processing and Civil Liberties Act, Freedom of the Press Act) and international law (European Convention on Human Rights, International Covenant on Civil and Political Rights, Universal Declaration of Human Rights, Charter of Fundamental Rights), involving a judicial balancing exercise between protection of the person and of other values such as freedom of expression or evidentiary needs.”
[6]. See the Marlene Dietrich Case, BGH 1 ZR 49/97, at Institute for Transnational Law – Foreign Law Translations, Texas University School of Law, at http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=726 (Updated on 23 March 2015)
[7]. See at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-126629 (Updated on 24 March 2015)
[8]. The term is used in the literature: see Justin Hurwitz, “Trust and Online Interaction”, University of Pennsylvania Law Review, Vol. 161: 1579.
[9]. Jack M. Balkin, “Old-School/New-School Speech Regulation”, 127 Harvard Law Review 2296 (2014).
[10]. Ibid. at 2309.
[11]. Ibid. at 2311.
[12]. See E. Chevalier Huyttens (ed.), Discussion du Congrès national de Belgique 1830-1831 (Tome premier, 10 novembre-31 décembre 1830), Brussels, Société typographique belge Adolphe Wahlen et Cie (1844). See Nothomb’s speech, pp. 651-652.
The specific language of the 1831 Constitution was a compromise and did not reflect the principled approach of the liberals who stood for Constitutionalism (writ large), but even this compromise, which we find today reproduced in Article 25 of the Belgian Constitution, states that “When the author is known and resident in Belgium, neither the publisher, the printer nor the distributor can be prosecuted”. Back to 1830?
[13]. Confirmed most recently by the Grand Chamber in Konstantin Markin v. Russia [GC], no. 30078/06, § 89, ECHR 2012.
[14]. While the passage from Pravoye Delo quoted in the judgment (see paragraph 128) seems to take a neutral position on the balance between the good and bad sides of the Internet, it is important to note that in Pravoye Delo the negative aspects did not prevail and the “risk of harm” argument was followed by a “nevertheless”, opting in favour of Internet freedoms (Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, §§ 63-64, ECHR 2011).
[15]. Social media operators have already institutionalised over-censorship by allowing a policy of banning sites and posts which have been “reported”, without conducting a serious investigation into the matter. The policy adopted by Facebook is another victory for the troll mentality. Note that Facebook requires (all) user-imposed censorship to take place in a legal environment that grants service providers immunity under the Communications Decency Act 230 (a). Imagine what will happen where there is no immunity.
[16]. “Hate speech” remains undefined. “There is no universally accepted definition of ‘hate speech’. The term encompasses a wide array of hateful messages, ranging from offensive, derogatory, abusive and negative stereotyping remarks and comments, to intimidating, inflammatory speech inciting violence against specific individuals and groups. Only the most egregious forms of hate speech, namely those constituting incitement to discrimination, hostility and violence, are generally considered unlawful” (Report of the Special Rapporteur on minority issues, Rita Izsák (A/HRC/28/64), Human Rights Council, Twenty-eighth session).
See more at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15716&LangID=E#sthash.XYM1WUqO.dpuf
The lack of an identifiable concept in twenty very different comments makes the application of the judgment unforeseeable.
[17]. The Court has rather clear requirements as to what amounts to an impermissible call for violence (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV; Dagtekin v. Turkey, no. 36215/97, 13 January 2005; Erbakan v. Turkey, no. 59405/00, § 56, 6 July 2006; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 56-58, ECHR 2007-IV; Otegi Mondragon v. Spain, no. 2034/07, § 54, ECHR 2011; and Vejdeland v. Sweden, no. 1813/07, § 55, 9 February 2012).
[18]. It was of relevance in Stoll v. Switzerland [GC], no. 69698/01, § 54-56, ECHR 2007-V), in the determination of the Government interest at stake, that no criminal action was taken against the applicant; hence the argument relating to the protection of national security was found to be of no relevance.
[19]. George Packer, “Mute Button”, The New Yorker, 13 April 2015.
[20]. It is remarkable to note that the rest of this quotation is not taken into consideration in this judgment. The original paragraph contains an important qualification: “Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice.” In the present case, however, the issue is not the use of vague terms, for example the fact that the Directive employs a vague term when it refers to “service provider”. The issue was that there were two laws and the applicant company believed that the Directive was applicable as Union law and as special law, whereas the Supreme Court took the view that the other law was applicable, because the service provider was a publisher.
[21]. In the case of Editorial Board of Pravoye Delo and Shtekel v. Ukraine (cited above), involving an Internet-related dispute under Article 10, although different from the one presented here, the Court found a violation of Article 10 on the sole basis that the interference was not adequately prescribed by law, taking account, amongst other things, of the special problems arising in the Internet era.
[22]. Sometimes incitement to violence is also mentioned.
[23]. Where the balancing exercise between these two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG v. Germany [GC], no. 39954/08, § 88, 7 February 2012, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 107, ECHR 2012). It is probably for this reason that the Court’s analysis in the present case focuses on the sufficiency of the reasons provided by the domestic courts. However, the domestic courts have only selectively considered the criteria laid down in the Court’s case-law.
[24]. The principles quoted in the judgment refer to relevant and sufficient reasons as part of the consideration of the margin of appreciation. This makes sense, for example, when the national authorities provide reasons about the appropriateness of the means or the aims; if these are relevant the margin of appreciation may change and the level of scrutiny may diminish. In the present case, however, the requirement that relevant and sufficient reasons be given becomes detached from the margin of appreciation. A restriction of a Convention right, where the reasons for the limitation are not provided, is arbitrary and therefore cannot be held to be necessary in a democratic society. It is important for the rule of law and the exercise of rights that the restrictive measure itself contains reasons and that these are not made up ex post facto. It would be even less acceptable to allow this Court to speculate about possible reasons of its own motion.
[25]. See Ashby Donald and Others, cited above, § 34, and Wegrzynowski and Smolczewski, cited above, § 58.
[26]. We read the evaluation given by the Court as a declaration of lack of clarity with regard to the Supreme Court judgment: “Therefore, the Supreme Court did not explicitly determine whether the applicant company was under an obligation to prevent the uploading of the comments on the website or whether it would have sufficed under domestic law for the applicant company to have removed the offending comments without delay after publication, to escape liability under the Obligations Act” (see paragraph 153 of the judgment).
[27]. There is no way to exculpate the active intermediary as it should have known that illegal content had been posted and should have removed it immediately.
[28]. In a standard liability case the contribution of the victim is a matter for consideration. Delfi was blamed for the fact that the illegal content remained online for six weeks. Why did L. and his company not follow an article on a very important news portal concerning their economic activities and report these comments earlier?
[29]. The Court did not include this part of the established case-law in its analysis of journalistic responsibilities in paragraph 132, where it mentions that the duty of the press “is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest”. Here, the Court is dealing with a case involving a debate on a matter of public interest. This is not the place to express our doubts regarding the construction of press rights as duties, but we note that alternative language is also in use in our case-law: “Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them” (see News Verlags GmbH & Co. KG v. Austria, no. 31457/96, § 56, ECHR 2000-I; Dupuis and Others v. France, no. 1914/02 § 35, 7 June 2007; and Campos Dâmaso v. Portugal, no. 17107/05, § 31, 24 April 2008).” See also Axel Springer AG (cited above), §§ 80 and 79.
[30]. Philip Hamburger, “The Development of the Law of Seditious Libel and the Control of the Press”, 37 Stanford Law Review 661, 673 (1985). See also John Feather, A History of British Publishing, Routledge, second edition (2002).
MAGYAR TARTALOMSZOLGALTATOK EGYESULETE AND INDEX.HU ZRT v. HUNGARY
22947/13 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 135 (02 February 2016)
URL: http://www.bailii.org/eu/cases/ECHR/2016/135.html
Cite as: [2016] ECHR 135
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members.
The second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary.
6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants.
7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals’ own opinion and that the authors of comments were responsible for their contents.
8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary.
9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites.
10. Index’s “Principles of moderation” contained the following:
“I. Deletion of comments
1.1. Especially forbidden are:
1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act…
3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic…”
11. On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading.
12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following:
“They have talked about these two rubbish real estate websites (“két szemét ingatlanos oldalról”) a thousand times already.”
“Is this not that Benko-Sándor-sort-of sly, rubbish, mug company (“benkosándoros sunyi szemét lehúzó cég”) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That’s it.”
13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”.
14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites]”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows:
“People like this should go and shit a hedgehog and spend all their money on their mothers’ tombs until they drop dead.” (“Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek.”)
15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation.
Once learning of the impending court action, the applicants removed the impugned comments at once.
16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company.
17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff’s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies.
The Court found that the comments (see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them.
As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism.
18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff’s action. They also argued that users’ comments were to be distinguished from readers’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage.
19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee.
20. The Court of Appeal held that – as opposed to readers’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court’s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘hosting service providers’ and ‘intermediaries’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation.
21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites.
22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2(lc) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal’s view in finding that the comments were capable of harming the plaintiff’s good reputation and that the applicants’ liability consisted of their having allowed their publication.
The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff’s legal representation.
This decision was served on 2 October 2012.
23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression.
24. On 11 March 2013 the Constitutional Court declared the complaint admissible.
25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, (decision no. 19/2014. (V.30.) AB). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows.
“[43] In the case concerned by the Kúria’s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage.
[44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press.
[50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law.
[59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet.
[63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate?
[65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. … The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.”
II. RELEVANT DOMESTIC LAW
26. Act no. IV of 1959 on the Civil Code, as in force at the material time, provides:
Article 75
“(1) Personality rights shall be respected by everyone. Personality rights are protected under this Act.
(2) The rules governing the protection of personality rights are also applicable to legal personalities, except the cases where such protection can, due to its character, they only apply to private individuals.
(3) Personality rights will not be violated by conducts to which the holder of rights has given consent, unless such consent violates or endangers an interest of society. In any other case a contract or unilateral declaration restricting personality rights shall be null and void.”
Article 78
“(1) The protection of personality rights shall also include the protection of reputation.
(2) In particular, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person, shall constitute defamation.”
27. Act no. CVIII of 2001 on Electronic Commercial Services etc. provides as follows:
Section 1
“(4) The scope of this Act shall not extend to communications, including contractual statements, made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service.”
Section 2
“For the purposes of this Act:
a) Electronic commercial service is an information-society service for selling, buying, exchanging or obtaining in any other manner of a tangible, negotiable movable property – including money, financial securities and natural forces which can be treated in the same way as a property – a service, a real estate or a right having pecuniary value (henceforth together: goods); …
l) Provider of intermediary services: any natural or legal person providing an information society service, who
…
lc) stores information provided by a recipient of the service (hosting) (tárhelyszolgáltatás)”
III. RELEVANT INTERNATIONAL AND COMPARATIVE LAW
28. The relevant material found in the instruments of the Council of Europe, the United Nations and the European Union as well as in the national law of various Member States is outlined in paragraphs 44 to 58 of the judgment Delfi AS v. Estonia [GC] (no. 64569/09, ECHR 2015).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
29. The applicants complained that the rulings of the Hungarian courts establishing objective liability on the side of Internet websites for the contents of users’ comments amounts to an infringement of freedom of expression as provided in Article 10 of the Convention, which reads as follows:
“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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.”
30. The Government contested that argument.
A. Admissibility
31. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
32. At the outset, the applicants drew attention to the EU framework governing intermediary liability and the relevant international standards developed by the United Nations Special Rapporteur on Freedom of Expression as well as the Council of Europe expressed notably by the Committee of Ministers.
33. Moreover, in their view, it was immaterial which precise domestic legal provisions had served as the basis of the restriction complained of. The State interference resulted in the applicants’ objective liability for the comments made on their websites.
34. They disputed the rulings of the Hungarian courts according to which the comments had violated others’ right to good reputation. Those comments had appeared in a public debate on a matter of common interest. The debate concerned the unethical conduct of a service-provider, where there should be little restriction on expressions, even disturbing ones, especially when it comes to value judgments as in the present case. In any case, the comments could not be equated with edited readers’ letters.
35. The applicants also contended that the lawfulness of the interference leaves a lot to be desired because the domestic legal practice was divergent in such cases.
36. As to the Government’s suggestion that liability for comments could be avoided either by pre-moderation or by disabling commenting altogether, the applicants argued that both solutions would work against the very essence of free expression on the Internet by having an undue chilling effect.
37. The applicants furthermore contended that imposing strict liability on online publications for all third-party contents would amount to a duty imposed on websites to prevent the posting, for any period of time, of any user-generated content that might be defamatory. Such a duty would place an undue burden on many protagonists of the Internet scene and produce significant censoring, or even complete elimination, of user comments to steer clear of legal trouble – whereas those comments tend to enrich and democratise online debates.
38. It was noteworthy that the law of the European Union and some national jurisdictions contained less restrictive rules for the protection of rights of others and to manage liability of hosting service providers. Indeed, the application of the “notice and take down” rule was the adequate way of enforcing the protection of reputation of others.
39. The stance of the Hungarian authorities had resulted in disproportionate restriction on the applicants’ freedom of expression in that they had had to face a successful civil action against them, even though they had removed the disputed contents at once after they had learnt, from the court action, that the company concerned had perceived them as injurious. The legal procedure, along with the fees payable, must be seen as having a chilling effect.
40. To conclude, the applicants maintained that the simple application of the traditional rules of editorial responsibility, namely strict liability, was not the answer to the new challenges of the digital era. Imposing strict liability on online publications for all third-party content would have serious adverse repercussions for the freedom of expression and the democratic openness in the age of Internet.
(b) The Government
41. The Government conceded that there had been an interference with the applicants’ right to freedom of expression, albeit one prescribed by law and pursuing the legitimate aim of the protection of the rights of others. In their view, the authorities had acted within their margin of appreciation essentially because by displaying the comments the applicants had exceeded the limits of freedom of expression as guaranteed under the Convention.
42. The Government noted that the courts had not availed themselves of the notion of objective liability to be borne by Internet service providers for users’ comments. Pursuant to its Section 1(4), Act no. CVIII of 2001 on Electronic Commercial Services (see paragraph 22 above) had not been applicable in the case, since its scope did not extend to communications made by persons acting outside the sphere of economic or professional activities or public duties by making use of an information society-related service. The applicants’ objective liability had occurred since they had disseminated opinions privately expressed by other persons in a manner violating the law. Consequently, the general provisions of the Civil Code governing the protection of personality rights had been relied on by the courts. As they stated, an expression damaging reputation might also be committed by imparting and disseminating information obtained from other persons. The expressions published had contained unduly injurious, insulting and humiliating statements of facts which were contrary to the rules governing the expression of opinions. The publication of a fact might also amount to an opinion since the circumstances of the publication might reflect an opinion. Honour and reputation, however, did constitute an outer limit even to opinions or value judgments. Under Articles 75(1) and 78(1)-(2) of the Civil Code, the statement or dissemination of an injurious and untrue fact concerning another person, or the presentation with untrue implications of a true fact relating to another person constituted defamation.
43. The applicants’ own right to impart and disseminate information and ideas was in no way violated. Indeed, they had not disputed that the comments had infringed the plaintiff’s personality rights. As regards the publication of the ideas of others, to avoid the legal consequences of allowing the comments the applicants could have pre-moderated them or not disallowed them altogether. Those who enabled the display of unmoderated comments on their websites should foresee that unlawful expressions might also be displayed – and sanctioned under the rules of civil law.
44. In assessing the necessity of the interference, the Government argued that the case involved a conflict between the right to freedom of expression and the protection of the honour and rights of others. The national courts had solved the conflict by weighing the relevant considerations in a manner complying with the principles laid down in Article 10 of the Convention. The comments were undoubtedly unlawful; and the sanctions applied were not disproportionate in that the courts limited themselves to establishing the breach of the law and obliging the applicants to pay only the court fees.
2. The Court’s assessment
45. The Court notes that it was not in dispute between the parties that the applicants’ freedom of expression guaranteed under Article 10 of the Convention had been interfered with by the domestic courts’ decisions. The Court sees no reason to hold otherwise.
46. Such an interference with the applicant company’s right to freedom of expression must be “prescribed by law”, have one or more legitimate aims in the light of paragraph 2 of Article 10, and be “necessary in a democratic society”.
47. In the present case the parties’ opinion differed as to whether the interference with the applicants’ freedom of expression was “prescribed by law”. The applicants argued that under the European legislation hosting service providers had restricted liability for third-party comments. The Government referred to section 1(4) of Act no. CVIII of 2001 to the effect that private expressions, such as the impugned comments, fell outside the scope of that Act. They relied on section 75(1) and 78(1)-(2) of the Civil Code and argued that the applicants were liable for imparting and disseminating private opinions expressed by third-parties.
48. The Court observes that the Court of Appeal concluded that the applicants’ case did not concern electronic commercial activities, and, in any case, pursuant to its section 1(4), Act no. CVIII of 2001 was not applicable to the impugned comments (see paragraph 20 above). The Kúria, while upholding the second-instance judgment found, without further explanation, that the applicants were not intermediaries in terms of section 2(lc) of that Act (see paragraph 22 above).
The domestic courts, thus, chose to apply Article 78 of the Civil Code, although, apparently, for different reasons.
49. The Court reiterates in this context that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see, among others, Rekvényi v. Hungary [GC], no. 25390/94, § 35, ECHR 1999-III). The Court also reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 67, ECHR 2004-I). Thus, the Court confines itself to examining whether the Kúria’s application of the relevant provisions of the Civil Code to the applicants’ situation was foreseeable for the purposes of Article 10 § 2 of the Convention. As the Court has previously held, the level of precision required of domestic legislation – which cannot provide for every eventuality – depends to a considerable degree on the content of the law in question, the field it is designed to cover and the number and status of those to whom it is addressed (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 142, ECHR 2012). The Court has found that persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation, can on this account be expected to take special care in assessing the risks that such activity entails (see Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007-IV).
50. The Court notes that the Kúria did not embark on an explanation whether and how Directive 2000/31/EC was taken into account when interpreting section 2(lc) of Act no. CVIII of 2001 and arriving to the conclusion that the applicants were not intermediaries in terms of that provision, despite the applicants’ suggestion that the correct application of the EU law should have exculpated them in the circumstances.
51. Nonetheless, the Court is satisfied on the facts of this case that the provisions of the Civil Code made it foreseeable for a media publisher running a large Internet news portal for an economic purpose and for a self-regulatory body of Internet content providers, that they could, in principle, be held liable under domestic law for unlawful comments of third-parties. Thus, the Court considers that the applicants was in a position to assess the risks related to their activities and that they must have been able to foresee, to a reasonable degree, the consequences which these could entail. It therefore concludes that the interference in issue was “prescribed by law” within the meaning of the second paragraph of Article 10 of the Convention (see mutatis mutandis, Delfi AS, cited above, §§ 125 to 129).
52. The Government submitted that the interference pursued the legitimate aim of protecting the rights of others. The Court accepts this.
53. It thus remains to be ascertained whether it was “necessary in a democratic society” in order to achieve the aim pursued.
(a) General principles
54. The fundamental principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law and have been summarised as follows (see, among other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998-VI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005-II; Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013; and most recently in Delfi AS, cited above, § 131):
“(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which … must, however, be construed strictly, and the need for any restrictions must be established convincingly …
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’… In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts …”
55. Furthermore, the Court has emphasised the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Couderc and Hachette Filipacchi Associés v. France [GC] (no. 40454/07, § 89, 10 November 2015; Bladet Tromsø and Stensaas, cited above, § 59; and Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Delfi AS, cited above, § 132; Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001-I).
56. Moreover, the Court has previously held 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 (see Ahmet Yildirim v. Turkey, no. 3111/10, § 48, ECHR 2012; Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009; and Delfi, cited above, § 133). At the same time, in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor (see Delfi, cited above, § 134; see also Jersild v. Denmark, cited above, § 31).
57. The Court further reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI; and Polanco Torres and Movilla Polanco v. Spain, no. 34147/06, § 40, 21 September 2010). In order for Article 8 to come into play, however, an attack on a person’s reputation must attain a certain level of seriousness and be made in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Delfi AS, cited above, § 137; Axel Springer AG v. Germany [GC], no. 39954/08, § 83, 7 February 2012; and A. v. Norway, no. 28070/06, § 64, 9 April 2009).
58. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see Delfi AS, cited above, § 138; Axel Springer AG, cited above, § 84; Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
59. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155; and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Delfi AS, cited above, § 139; Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).
(b) Application of those principles to the present case
(i) Preliminary remarks and applicable criteria
60. In order to determine the standards applicable in the instant case, the Court will consider the nature of the applicants’ rights of expression in view of their role in the process of communication and the specific interest protected by the interference, namely – as was implied by the domestic courts – the rights of others.
61. The Court notes that both the first applicant, as a self-regulatory body of internet service providers, and the second applicant, as a large news portal, provided forum for the exercise of expression rights, enabling the public to impart information and ideas. Thus, the Court shares the Constitutional Court’s view according to which the applicants’ conduct must be assessed in the light of the principles applicable to the press (see paragraph 25 above).
62. The Court reiterates in this regard that although not publishers of the comments in the traditional sense, Internet news portals must, in principle, assume duties and responsibilities. Because of the particular nature of the Internet, those duties and responsibilities may differ to some degree from those of a traditional publisher, notably as regards third-party contents (see Delfi AS, cited above, § 113).
63. In particular, the Court has examined in the case of Delfi AS the duties and responsibilities under Article 10 § 2 of large Internet news portals where they provide, for economic purposes, a platform for user-generated comments and where the users of such platforms engage in clearly unlawful expressions, amounting to hate speech and incitement to violence.
64. However, the present case is different. Although offensive and vulgar (see paragraphs 12 and 14 above), the incriminated comments did not constitute clearly unlawful speech; and they certainly did not amount to hate speech or incitement to violence. Furthermore, while the second applicant is the owner of a large media outlet which must be regarded as having economic interests, the first applicant is a non-profit self-regulatory association of Internet service providers, with no known such interests.
65. The domestic courts found that the impugned statements violated the personality rights and reputation of the plaintiff company, a moral person. At this juncture the Court notes that the domestic authorities accepted without any further analysis or justification that the impugned statements were unlawful as being injurious to the reputation of the plaintiff company.
66. As the Court has previously held, legal persons could not claim to be a victim of a violation of personality rights, whose holders could only be natural persons (see Sdružení Jihoceské Matky v. Czech Republic (dec.), no. 19101/03, 10 July 2006). There is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court, interests of commercial reputation are devoid of that moral dimension (see Uj v. Hungary, no. 23954/10, § 22, 19 July 2011). Moreover, the Court reiterates that there is an interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kulis and Rózycki v. Poland, no. 27209/03, § 35, ECHR 2009).
67. However, in the present case it is not necessary to decide whether the plaintiff company could justifiably rely on its right to reputation, seen from the perspective of Article 8 of the Convention. It suffices to observe that the domestic courts found that the comments in question constituted an infringement of its personality rights. Indeed, it cannot be excluded that the impugned comments were injurious towards the natural person behind the company and that, in this sense, the decisions of the domestic courts intended to protect, in an indirect manner, that person from defamatory statements. The Court will therefore proceed under the assumption that – giving the benefit of the doubt to the domestic courts’ stance identifying a valid reputational interest – there was to be a balancing between the applicants’ Article 10 rights and the plaintiff’s Article 8 rights.
68. The Court has already had occasion to lay down the relevant principles which must guide its assessment in the area of balancing the protection of freedom of expression as enshrined in Article 10 and the protection of the reputation of those against whom allegations were made, a right which, as an aspect of private life, is protected by Article 8 of the Convention. It identified a number of relevant criteria, out of which the particularly pertinent in the present case, to which the Court will revert below, are: contribution to a debate of public interest, the subject of the report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the gravity of the penalty imposed on the journalists or publishers (see Couderc and Hachette Filipacchi Associés v. France [GC], cited above, § 93; Von Hannover v. (no. 2), cited above, §§ 108 to 113, ECHR 2012; and Axel Springer AG, cited above, §§ 90-95, 7 February 2012). At this juncture the Court would add that the outcome of such a balancing performed by the domestic courts will be acceptable in so far as those courts applied the appropriate criteria and, moreover, weighed the relative importance of each criterion with due respect paid to the particular circumstances of the case.
69. In the case of Delfi AS, the Grand Chamber identified the following specific aspects of freedom of expression in terms of protagonists playing an intermediary role on the Internet, as being relevant for the concrete assessment of the interference in question: the context of the comments, the measures applied by the applicant company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the applicant company (see Delfi AS, cited above, §§ 142-43).
70. These latter criteria were established so as to assess the liability of large Internet news portals for not having removed from their websites, without delay after publication, comments that amounted to hate speech and incitement to violence. However, for the Court, they are also relevant for the assessment of the proportionality of the interference in the present case, free of the pivotal element of hate speech. It is therefore convenient to examine the balancing, if any, performed by the domestic courts and the extent to which the relevant criteria (see Von Hannover (no. 2), cited above, §§ 108 to 113) were applied in that process, with regard to the specific aspects dictated by the applicants’ respective positions (see Delfi AS, cited above, §§ 142-43).
71. Consequently, it has to be ascertained if the domestic authorities struck an appropriate balance between the applicants’ right under Article 10, as protagonists in providing Internet platform for, or inviting expressions from, third-parties on the one hand, and the rights of the plaintiff company not to sustain allegations infringing its rights under Article 8, on the other. In particular, in the light of the Kúria’s reasoning, the Court must examine whether the domestic courts’ imposition of liability on the applicants for third-party comments was based on relevant and sufficient reasons in the particular circumstances of the case.
The Court itself will proceed to assess the relevant criteria as laid down in its case-law to the extent that the domestic authorities failed to do so.
(ii) Context and content of the impugned comments
72. As regards the context of the comments, the Court notes that the underlying article concerned the business practice of two large real estate websites, which was deemed misleading and injurious to their clients, thus there was a public interest in ensuring an informed public debate over a matter concerning many consumers and Internet users. The conduct in question had already generated numerous complaints to the consumer protection organs and prompted various procedures against the company concerned (see paragraph 16 above). The Court is therefore satisfied that the comments triggered by the article can be regarded as going to a matter of public interest.
Moreover, against this background, the article cannot be considered to be devoid of a factual basis or provoking gratuitously offensive comments.
73. The Court attaches importance to the fact that the second applicant is the owner of a large news portal, run on a commercial basis and obviously attracting a large number of comments. On the contrary, there is no appearance that the situation of the first applicant, the self-regulatory association of Internet content providers, was in any manner similar; indeed, the latter’s publication of contents of predominantly professional nature was unlikely to provoke heated discussions on the Internet. At any rate, the domestic courts appear to have paid no attention to the role, if any, which the applicants respectively played in generating the comments.
74. As regards the contents of the comments, the domestic courts found that they had overstepped the acceptable limits of freedom of opinion and infringed the right to reputation of the plaintiff company, in that they were unreasonably offensive, injurious and degrading.
75. For the Court, the issue in the instant case is not defamatory statements of fact but value judgments or opinions, as was admitted by the domestic courts. They were denouncements of a commercial conduct and were partly influenced by the commentators’ personal frustration of having been tricked by the company. Indeed, the remarks can be considered as an ill-considered reaction (compare and contrast Palomo Sánchez and Others cited above, § 73). They were posted in the context of a dispute over the business policy of the plaintiff company perceived as being harmful to a number of clients.
76. Furthermore, the expressions used in the comments were offensive, one of them being outright vulgar. As the Court has previously held, offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see Skalka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression (see Uj, cited above, § 23).
77. Without losing sight of the effects of defamation on the Internet, especially given the ease, scope and speed of the dissemination of information (see Delfi AS, cited above,§ 147), the Court also considers that regard must be had to the specificities of the style of communication on certain Internet portals. For the Court, the expressions used in the comments, albeit belonging to a low register of style, are common in communication on many Internet portals – a consideration that reduces the impact that can be attributed to those expressions.
(iii) Liability of the authors of the comments
78. As regards the establishment, in the civil proceedings, of the commentators’ identities, the Court notes that the domestic authorities did not at all address its feasibility or the lack of it. The Constitutional Court restricted its analysis to stating that the injured party was unlikely to receive any compensation without the liability of the operator of the Internet portal.
At this juncture, the Court notes that there is no appearance that the domestic courts enquired into the conditions of commenting as such or into the system of registration enabling readers to make comments on the applicants’ websites.
79. The national courts were satisfied that it was the applicants that bore a certain level of liability for the comments, since they had “disseminated” defamatory statements (see paragraph 42 above), however without embarking on a proportionality analysis of the liability of the actual authors of the comments and that of the applicants. For the Court, the conduct of the applicants providing platform for third-parties to exercise their freedom of expression by posting comments is a journalistic activity of a particular nature (see Delfi AS, cited above, §§ 112-13). Even accepting the domestic courts’ qualification of the applicants’ conduct as “disseminating” defamatory statements, the applicant’s liability is difficult to reconcile with the existing case-law according to which “punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (see Jersild, cited above, § 35; Thoma v. Luxembourg, no. 38432/97, § 62, ECHR 2001-III; and, mutatis mutandis, Verlagsgruppe News GmbH v. Austria, no. 76918/01, § 31, 14 December 2006, Print Zeitungsverlag GmbH v. Austria, no. 26547/07, § 39, 10 October 2013; and Delfi AS, cited above, § 135).
(iv) Measures taken by the applicants and the conduct of the injured party
80. The Court observes that although the applicants immediately removed the comments in question from their websites upon notification of the initiation of civil proceedings (see paragraphs 15 above), the Kúria found them liable on the basis of the Civil Code, since by enabling readers to make comments on those websites and in connection to the impugned article, they had assumed objective liability for any injurious or unlawful comments made by those readers. As the Budapest Court of Appeal held, the circumstances of removing the comments were not a matter relevant for the assessment of objective liability but one for the assessment of any compensation (see paragraph 20 above).
81. The Court observes that the applicants took certain general measures to prevent defamatory comments on their portals or to remove them. Both applicants had a disclaimer in their General terms and conditions stipulating that the writers of comments – rather than the applicants – were accountable for the comments. The posting of comments injurious to the rights of third parties were prohibited. Furthermore, according to the Rules of moderation of the second applicant, “unlawful comments” were also prohibited. The second applicant set up a team of moderators performing partial follow-up moderation of comments posted on its portal. In addition, both applicants had a notice-and-take-down system in place, whereby anybody could indicate unlawful comments to the service provider so that they be removed. The moderators and the service providers could remove comments deemed unlawful at their discretion (see paragraphs 7-10 above).
82. The domestic courts held that, by allowing unfiltered comments, the applicants should have expected that some of those might be in breach of the law. For the Court, this amounts to requiring excessive and impracticable forethought capable of undermining freedom of the right to impart information on the Internet.
83. The Court also observes that the injured company never requested the applicants to remove the comments but opted to seek justice directly in court – an element that did not attract any attention in the domestic evaluation of the circumstances.
Indeed, the domestic courts imposed objective liability on the applicants for “having provided space for injurious and degrading comments” and did not perform any examination of the conduct of either the applicants or the plaintiff.
(v) Consequences of the comments for the injured party
84. As the Court has previously held in the context of compensation for the protraction of civil proceedings, juristic persons may be awarded compensation for non-pecuniary damage, where consideration should be given to the company’s reputation (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 35, ECHR 2000-IV). However, the Court reiterates that there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are primarily of business nature and devoid of the same moral dimension which the reputation of individuals encompasses. In the instant application, the reputational interest at stake is that of a private company; it is thus a commercial one without relevance to moral character (see, mutatis mutandis, Uj, cited above, § 22).
85. The consequences of the comments must nevertheless be put into perspective. At the time of the publication of the article and the impugned comments, there were already ongoing inquiries into the plaintiff company’s business conduct (see paragraph 17 above). Against this background, the Court is not convinced that the comments in question were capable of making any additional and significant impact on the attitude of the consumers concerned. However, the domestic courts do not appear to have evaluated whether the comments reached the requisite level of seriousness and whether they were made in a manner actually causing prejudice to a legal person’s right to professional reputation (see paragraph 57 above).
(vi) Consequences for the applicants
86. The applicants were obliged to pay the court fees, including the fee paid by the injured party for its legal representation (see paragraph 22 above), but no awards were made for non-pecuniary damage. However, it cannot be excluded that the court decision finding against the applicants in the present case might produce legal basis for a further legal action resulting a damage award. In any event, the Court is of the view that the decisive question when assessing the consequence for the applicants is not the absence of damages payable, but the manner in which Internet portals such as theirs can be held liable for third-party comments. Such liability may have foreseeable negative consequences on the comment environment of an Internet portal, for example by impelling it to close the commenting space altogether. For the Court, these consequences may have, directly or indirectly, a chilling effect on the freedom of expression on the Internet. This effect could be particularly detrimental for a non-commercial website such as the first applicant (compare and contrast Delfi AS, cited above, § 161).
87. The Constitutional Court held that the operation of Internet portals allowing comments without prior moderation was a forum of the exercise of freedom of expression (see paragraph 25 above). Indeed, the Court stressed on many occasions the essential role which the press plays in a democratic society (see De Haes and Gijsels v. Belgium, cited above, § 37) – a concept which in modern society undoubtedly encompasses the electronic media including the Internet.
88. However, the Court cannot but observe that the Hungarian courts paid no heed to what was at stake for the applicants as protagonists of the free electronic media. They did not embark on any assessment of how the application of civil-law liability to a news portal operator will affect freedom of expression on the Internet. Indeed, when allocating liability in the case, those courts did not perform any balancing at all between this interest and that of the plaintiff. This fact alone calls into question the adequacy of the protection of the applicants’ freedom-of-expression rights on the domestic level.
(vii) Conclusion
89. The Court considers that the rigid stance of the Hungarian courts reflects a notion of liability which effectively precludes the balancing between the competing rights according to the criteria laid down in the Court’s case law (see Von Hannover (no. 2), cited above, § 107).
90. At this juncture, the Court reiterates that it is not for it to express a view on the appropriateness of methods chosen by the legislature of a respondent State to regulate a given field. Its task is confined to determining whether the methods adopted and the effects they entail are in conformity with the Convention (see Gorzelik and Others v. Poland, cited above, § 67).
91. However, in the case of Delfi AS, the Court found that if accompanied by effective procedures allowing for rapid response, the notice-and-take-down-system could function in many cases as an appropriate tool for balancing the rights and interests of all those involved. The Court sees no reason to hold that such a system could not have provided a viable avenue to protect the commercial reputation of the plaintiff. It is true that, in cases where third-party user comments take the form of hate speech and direct threats to the physical integrity of individuals, the rights and interests of others and of the society as a whole might entitle Contracting States to impose liability on Internet news portals if they failed to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties (see Delfi AS, cited above, § 159). However, the present case did not involve such utterances.
The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
92. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
93. The applicants made no damage claim.
B. Costs and expenses
94. The applicants, jointly, claimed 5,100 euros (EUR) for the costs and expenses incurred before the Court. This sum corresponds to 85 hours of legal work billable by their lawyer at an hourly rate of EUR 60.
95. The Government contested this claim.
96. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed.
C. Default interest
97. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,100 (five thousand one hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 2 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Vincent De Gaetano
Registrar Vice-President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Kuris is annexed to this judgment.
V.D.G.
F.E.P.
CONCURRING OPINION OF JUDGE KURIS
1. Somewhat similarly to Delfi AS v. Estonia (GC] (no. 64569/09, ECHR 2015), which was, in the Court’s own words, “the first case in which the Court has been called upon to examine a complaint of this type [regarding the liability of Internet providers for the contents of comments]”, the present case is the first in which the principles set forth in Delfi AS, to the balanced reasoning in which I subscribe, have been called upon to be applied and, at the same time, tested.
2. Together with my colleagues, I voted for the finding of a violation of Article 10 of the Convention. The vulgar and offensive comments dealt with in the present case were value judgments of no value whatsoever; however, they did not incite violence, did not stoop to the level of hate speech and, at least in this most important respect, could not a priori be viewed by the applicants as “clearly unlawful”. This is essentially what distinguishes these comments from the hate speech dealt with in Delfi AS. This decisive difference is rightly noted in, inter alia, paragraph 64 of the judgment. Thus, although it results in the opposite conclusion to that found in Delfi AS, the present judgment does not, in my opinion, depart from the Delfi AS principles.
3. Consequently, this judgment should in no way be employed by Internet providers, in particular those who benefit financially from the dissemination of comments, whatever their contents, to shield themselves from their own liability, alternative or complementary to that of those persons who post degrading comments, for failing to take appropriate measures against these envenoming statements. If it is nevertheless used for that purpose, this judgment could become an instrument for (again!) whitewashing the Internet business model, aimed at profit at any cost.
If, alas, such a regrettable turn of events should occur, those in the Internet business would not stand alone in their moral responsibility for further contamination of the public sphere. And we cannot pretend that we do not know who – if not personally, still certainly institutionally – would have to share that responsibility. If things develop in that direction, then Judge Boštjan Zupancic’s pointed remark in his concurring opinion in Delfi AS would become even more pertinent (emphasis added):
“I do not know why the national courts hesitate in adjudicating these kinds of cases and affording strict protection of personality rights and decent compensation to those who have been subject to these kinds of abusive verbal injuries, but I suspect that our own case-law has something to do with it.”
4. This is the first post-Delfi judgment, but, of course, it will not be the last. It is confined to the individual circumstances of this particular case. There will inevitably be other cases dealing with liability for the contents of Internet messages and the administration thereof. Today, it is too early to draw generalising conclusions. One should look forward to these future cases, with the hope that the present judgment, although it may now appear to some as a step back from Delfi AS, will prove to be merely further evidence that the balance to be achieved in cases of this type is a very subtle one.
KU v. FINLAND
2872/02 [2008] ECHR 1563 (2 December 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1563.html
Cite as: 48 EHRR 52, (2009) 48 EHRR 52, [2008] ECHR 1563
PROCEDURE
The case originated in an application (no. 2872/02) against the Republic of Finland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national (“the applicant”) on 1 January 2002. The President of the Chamber acceded to the applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).
The applicant was represented by Mr P. Huttunen, a lawyer practising in Helsinki. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The applicant alleged, in particular, that the State had failed in its positive obligation to protect his right to respect for private life under Article 8 of the Convention.
By a decision of 27 June 2006, the Court declared the application admissible.
The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other’s observations. In addition, third-party comments were received from the Helsinki Foundation for Human Rights, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1986.
On 15 March 1999 an unknown person or persons placed an advertisement on a dating site on the Internet in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.
The applicant became aware of the announcement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”.
The applicant’s father requested the police to identify the person who had placed the advertisement in order to prefer charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic IP address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.
The police then asked the Helsinki District Court (käräjäoikeus, tingsrätten) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).
In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen; Act no. 450/1987) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act (laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, calumny was not such an offence.
On 14 March 2001 the Court of Appeal (hovioikeus, hovrätten) upheld the decision and on 31 August 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
The person who answered the dating advertisement and contacted the applicant was identified through his e-mail address.
The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act (henkilötietolaki, personuppgiftslagen; Act no. 523/99 which entered into force on 1 June 1999), more precisely that the service provider had published a defamatory announcement on its website without verifying the identity of the sender.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The Finnish Constitution Act (Suomen hallitusmuoto, Regeringsform för Finland; Act no. 94/1919, as amended by Act no. 969/1995) was in force until 1 March 2000. Its section 8 corresponded to Article 10 of the current Finnish Constitution (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), which provides that everyone’s right to private life is guaranteed.
At the material time, Chapter 27, article 3, of the Penal Code (rikoslaki, strafflagen; Act no. 908/1974) provided:
“A person who in a manner other than that stated above commits an act of calumny against another by a derogatory statement, threat or by another degrading act, shall be sentenced for calumny to a fine or to imprisonment for a maximum period of three months.
If the calumny is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”
At the material time, Chapter 5a, section 3, of the Coercive Measures Act provided:
“Preconditions of telecommunications monitoring
Where there is reason to suspect a person of
1) an offence not punishable by less than imprisonment of four months,
2) an offence against a computer system using a terminal device, a narcotics offence, or
3) a punishable attempt to commit an offence referred to above in this section,
the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect’s possession or otherwise presumed to be in his use, or temporarily to disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence …”
Section 18, subsection 1(1) of the Protection of Privacy and Data Security in Telecommunications Act, which entered into force on 1 July 1999 and was repealed on 1 September 2004, provided:
“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:
(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the owner of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, Article 9a, Chapter 17, Article 13(2) or Chapter 24, Article 3a of the Penal Code (Act no. 39/1889) …”
Section 48 of the Personal Data Act provides that the service provider is under criminal liability to verify the identity of the sender before publishing a defamatory announcement on its website. Section 47 provides that the service provider is also liable in damages.
At the material time, processing and publishing sensitive information concerning sexual behaviour on an Internet server without the person’s consent was criminalised as a data protection offence in section 43 of the Personal Files Act (Act no. 630/1995) and Chapter 38, Article 9 (Act no. 578/1995), of the Penal Code, and as a data protection violation in section 44 of the Personal Files Act. Furthermore, it could have caused liability in damages by virtue of section 42 (Act no. 471/1987) of the said Act.
Section 17 of the Exercise of Freedom of Expression in Mass Media Act (laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation: Act no. 460/2003), which came into force on 1 January 2004, provides:
“Release of identifying information for a network message
On the request of an official with the power of arrest… , a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the release of the identifying information to the the injured party may be ordered only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the Helsinki District Court within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”
III. RELEVANT INTERNATIONAL MATERIALS
A. The Council of Europe
The rapid development of telecommunications technologies in recent decades has led to the emergence of new types of crime and has also enabled the commission of traditional crimes by means of new technologies. The Council of Europe recognised the need to respond adequately and rapidly to this new challenge as far back as in 1989 when the Committee of Ministers adopted Recommendation No. R (89) 9 on computer-related crime. Resolved to ensure that the investigating authorities possessed appropriate special powers in investigating computer-related crimes, the Committee of Ministers adopted, in 1995, Recommendation No. R (95) 13 concerning problems of criminal procedure law connected with information technology. In point 12 of the principles appended to the recommendation, it encouraged as follows:
“Specific obligations should be imposed on service-providers who offer telecommunication services to the public, either through public or private networks, to provide information to identify the user, when so ordered by the competent investigating authority.”
The other principles relating to the obligation to co-operate with the investigating authorities stated:
“9. Subject to legal privileges or protection, most legal systems permit investigating authorities to order persons to hand over objects under their control that are required to serve as evidence. In a parallel fashion, provisions should be made for the power to order persons to submit any specified data under their control in a computer system in the form required by the investigating authority.
10. Subject to legal privileges or protection, investigating authorities should have the power to order persons who have data in a computer system under their control to provide all necessary information to enable access to a computer system and the data therein. Criminal procedural law should ensure that a similar order can be given to other persons who have knowledge about the functioning of the computer system or measures applied to secure the data therein.”
In 1996, the European Committee on Crime Problems set up a committee of experts to deal with cybercrime. It was felt that, although the previous two recommendations on substantive and procedural law had not gone unheeded, only a binding international instrument could ensure the necessary efficiency in the fight against cyber-space offences. The Convention on Cybercrime was opened for signature on 23 November 2001 and entered into force on 1 July 2004. It is the first and only international treaty on crimes committed via Internet and is open to all States. The Convention requires countries to establish as criminal offences the following acts: illegal access to a computer system, illegal interception of computer data, interference with data or computer system, misuse of devices, computer-related forgery and fraud, child pornography, the infringement of copyright and related rights. The additional protocol to the Convention, adopted in 2003, further requires the criminalisation of hate speech, xenophobia and racism. The scope of its procedural provisions goes beyond the offences defined in the Convention in that it applies to any offence committed by means of a computer system:
“Article 14 – Scope of procedural provisions
1. Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.
2. … each Party shall apply the powers and procedures referred to in paragraph 1 of this article to:
a) the criminal offences established in accordance with Articles 2 through 11 of this Convention;
b) other criminal offences committed by means of a computer system; and
c) the collection of evidence in electronic form of a criminal offence.
3. …”
The procedural powers include the following: expedited preservation of stored data, expedited preservation and partial disclosure of traffic data, production order, search and seizure of computer data, real-time collection of traffic data and interception of content data. Of particular relevance is the power to order a service provider to submit subscriber information relating to its services; indeed, the explanatory report describes the difficulty in identifying the perpetrator as being one of the major challenges in combating crime in the networked environment:
“Article 18 – Production order
1. Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:
a) a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and
b) a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.
2. The powers and procedures referred to in this Article shall be subject to Articles 14 and 15.
3. For the purpose of this Article the term “subscriber information” means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which can be established:
a) the type of communication service used, the technical provisions taken thereto and the period of service;
b) the subscriber’s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;
c) any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.”
The explanatory report notes that, in the course of a criminal investigation, subscriber information may be needed mainly in two situations. Firstly, to identify which services and related technical measures have been used or are being used by a subscriber, such as the type of telephone service used, type of other associated services used (for example call forwarding, voice-mail), telephone number or other technical address (for example e-mail address). Secondly, when a technical address is known, subscriber information is needed in order to assist in establishing the identity of the person concerned. A production order provides a less intrusive and less onerous measure which law enforcement authorities can apply instead of measures such as interception of content data and real-time collection of traffic data, which must or can be limited only to serious offences (Articles 20 and 21).
A global conference “Cooperation against Cybercrime” held in Strasbourg on 1-2 April 2008 adopted “Guidelines for the cooperation between law enforcement and internet service providers against cybercrime.” Their purpose is to help law enforcement authorities and Internet service providers structure their interaction in relation to cybercrime issues. In order to enhance cyber-security and minimise use of services for illegal purposes, it was considered essential that the two parties cooperate with each other in an efficient manner. The guidelines outline practical measures to be taken by law enforcement and service providers, encouraging them to exchange information in order to strengthen their capacity to identify and combat emerging types of cybercrime. In particular, service providers were encouraged to cooperate with law enforcement agencies to help minimise the extent to which services are used for criminal activity as defined by law.
B. The United Nations
Out of a number of resolutions adopted in the field of cyberspace, the most pertinent for the purposes of the present case are General Assembly resolutions 55/63 of 4 December 2000 and 56/121 of 19 December 2001 on “Combating the criminal misuse of information technologies.” Among the measures to combat such misuse, it was recommended in Resolution 55/63 that:
“(f) Legal systems should permit the preservation of and quick access to electronic data pertaining to particular criminal investigations;”
The subsequent resolution took note of the value of the various measures and again invited member States to take them into account.
C. The European Union
On 15 March 2006 the European Parliament and the Council of the European Union adopted Directive 2006/24/EC on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks, amending the previous data retention Directive 2002/58/EC. The aim of the Directive is to harmonise member States’ provisions concerning the obligations of communications providers with respect to the retention of certain data, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each member State in its national law. It applies to traffic and location data on both legal entities and natural persons and to the related data necessary to identify the subscriber or registered user. It does not apply to the content of electronic communications. The Directive requires member States to ensure that certain categories of data are retained for a period between six months and two years. Article 5 specifies the data to be retained:
“1. Member States shall ensure that the following categories of data are retained under this Directive:
(a) data necessary to trace and identify the source of a communication:
…
(2) concerning Internet access, Internet e-mail and Internet telephony:
…;
(iii) the name and address of the subscriber or registered user to whom an Internet Protocol (IP) address, user ID or telephone number was allocated at the time of the communication;”
Member States had until 15 September 2007 to implement the Directive. However, 16 states, including Finland, made use of the right to postpone their application to Internet access, Internet telephony and Internet e mail until 15 March 2009.
IV. COMPARATIVE LAW
A comparative review of national legislation of the member States of the Council of Europe shows that in most countries there is a specific obligation on the part of telecommunications service providers to submit computer data, including subscriber information, in response to a request by the investigating or judicial authorities, regardless of the nature of a crime. Some countries have only general provisions on the production of documents and other data, which could in practice be extended to cover also the obligation to submit specified computer and subscriber data. Several countries have not yet implemented the provisions of Article 18 of the Council of Europe Convention on Cybercrime.
V. THIRD PARTY SUBMISSIONS
The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State’s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States.
It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a nickname or even to use a false identity.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 8 AND 13 OF THE CONVENTION
The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed to reveal the identity of the person who had put a defamatory text on the Internet in his name, contrary to Article 13 of the Convention.
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
The applicant submitted that Finnish legislation at the time protected the criminal whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Protection of Privacy and Data Security in Telecommunications Act and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who had placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who infringed the victim’s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of the events, would have rendered this complaint unnecessary. In his view, the Government had not provided any justification for the failure to afford him this protection at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13.
The Government emphasised that in the present case the interference with the applicant’s private life had been committed by another individual. The impugned act was considered in domestic law as an act of calumny and would have been punishable as such, which had a deterrent effect. An investigation was started to identify the person who had placed the advertisement on the Internet, but was unsuccessful due to the legislation in force at the time, which aimed to protect the freedom of expression and the right to anonymous expression. The legislation protected the publisher of an anonymous Internet message so extensively that the protection also covered messages that possibly interfered with another person’s privacy. This side-effect of the protection was due to the fact that the concept of a message interfering with the protection of privacy was not clear-cut, and therefore it had not been possible to exclude clearly such messages from the protection provided by law. There were however other avenues of redress available, for example the Personal Data Act which provided protection against calumny in that the operator of the server, on the basis of that Act’s provisions on criminal liability and liability in damages, was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Furthermore, although the personal data offence had become time-barred the applicant still had the possibility to seek compensation from the publisher of the advertisement. When compared to the case of X and Y v. the Netherlands (judgment of 26 March 1985, Series A no. 91), liability in damages in the context of a less serious offence provided a sufficient deterrent effect. In addition, there were other mechanisms available to the applicant, such as a pre-trial police investigation, prosecution, court proceedings and damages.
The Government submitted that it was important to look at the legislative situation at the material time in its social context, when a rapid increase of the use of Internet was just beginning. The current legislation, the Exercise of Freedom of Expression in Mass Media Act (sections 2 and 17), which took effect on 1 January 2004, gives the police more extensive powers to break the protection of the publisher of an anonymous Internet message for the purposes of crime investigation. The new legislation reflects the legislator’s reaction to social development where an increased use – and at the same time abuse – of the Internet has required a redefinition of the limits of protection. Thus, because of a changed situation in society, subsequent legislation has further strengthened the protection of private life in respect of freedom of expression and especially the protection of publishers of anonymous Internet messages.
However, most essential in the present case was that even the legislation in force at the material time provided the applicant means against the distribution of messages invading privacy, in that the operator of the Internet server on which the message was published was obliged by law to verify that the person in question had consented to the processing of sensitive information concerning him/her on the operator’s server. This obligation was bolstered by criminal liability and liability in damages. Thus, the legislation provided the applicant with sufficient protection of privacy and effective legal remedies.
B. The Court’s assessment
The Court notes at the outset that the applicant, a minor of 12 years at the time, was the subject of an advertisement of a sexual nature on an Internet dating site. The identity of the person who had placed the advertisement could not, however, be obtained from the Internet provider due to the legislation in place at the time.
There is no dispute as to the applicability of Article 8: the facts underlying the application concern a matter of “private life”, a concept which covers the physical and moral integrity of the person (see X and Y v. the Netherlands, cited above, § 22). Although seen in domestic law terms as calumny, the Court would prefer to highlight these particular aspects of the notion of private life, having regard to the potential threat to the applicant’s physical and mental welfare brought about by the impugned situation and to his vulnerability in view of his young age.
The Court reiterates that, although the object of Article 8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 32).
These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. There are different ways of ensuring respect for private life and the nature of the State’s obligation will depend on the particular aspect of private life that is at issue. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State’s margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions (see X and Y v. the Netherlands, §§ 23-24 and 27; August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003 and M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 XII).
The limits of the national authorities’ margin of appreciation are nonetheless circumscribed by the Convention provisions. In interpreting them, since the Convention is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions within Contracting States and respond, for example, to any evolving convergence as to the standards to be achieved (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 74, ECHR 2002-VI).
The Court considers that, while this case might not attain the seriousness of X and Y v. the Netherlands, where a breach of Article 8 arose from the lack of an effective criminal sanction for the rape of a handicapped girl, it cannot be treated as trivial. The act was criminal, involved a minor and made him a target for approaches by paedophiles (see, also, paragraph 41 above in this connection).
46. The Government conceded that at the time the operator of the server could not be ordered to provide information identifying the offender. They argued that protection was provided by the mere existence of the criminal offence of calumny and by the possibility of bringing criminal charges or an action for damages against the server operator. As to the former, the Court notes that the existence of an offence has limited deterrent effects if there is no means to identify the actual offender and to bring him to justice. Here, the Court notes that it has not excluded the possibility that the State’s positive obligations under Article 8 to safeguard the individual’s physical or moral integrity may extend to questions relating to the effectiveness of a criminal investigation even where the criminal liability of agents of the State is not at issue (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 128). For the Court, States have a positive obligation inherent in Article 8 of the Convention to criminalise offences against the person including attempts and to reinforce the deterrent effect of criminalisation by applying criminal law provisions in practice through effective investigation and prosecution (see, mutatis mutandis, M.C. v. Bulgaria, cited above, § 153). Where the physical and moral welfare of a child is threatened such injunction assumes even greater importance. The Court recalls in this connection that sexual abuse is unquestionably an abhorrent type of wrongdoing, with debilitating effects on its victims. Children and other vulnerable individuals are entitled to State protection, in the form of effective deterrence, from such grave types of interference with essential aspects of their private lives (see Stubbings and Others v. the United Kingdom, 22 October 1996, § 64, Reports 1996 IV).
As to the Government’s argument that the applicant had the possibility to obtain damages from a third party, namely the service provider, the Court considers that it was not sufficient in the circumstances of this case. It is plain that both the public interest and the protection of the interests of victims of crimes committed against their physical or psychological well-being require the availability of a remedy enabling the actual offender to be identified and brought to justice, in the instant case the person who placed the advertisement in the applicant’s name, and the victim to obtain financial reparation from him.
The Court accepts that in view of the difficulties involved in policing modern societies, a positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities or, as in this case, the legislator. Another relevant consideration is the need to ensure that powers to control, prevent and investigate crime are exercised in a manner which fully respects the due process and other guarantees which legitimately place restraints on crime investigation and bringing offenders to justice, including the guarantees contained in Articles 8 and 10 of the Convention, guarantees which offenders themselves can rely on. The Court is sensitive to the Government’s argument that any legislative shortcoming should be seen in its social context at the time. The Court notes at the same time that the relevant incident took place in 1999, that is, at a time when it was well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes (see paragraphs 22 and 24 above). Also the widespread problem of child sexual abuse had become well-known over the preceding decade. Therefore, it cannot be said that the respondent Government did not have the opportunity to put in place a system to protect child victims from being exposed as targets for paedophiliac approaches via the Internet.
The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. Although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, such guarantee cannot be absolute and must yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. Without prejudice to the question whether the conduct of the person who placed the offending advertisement on the Internet can attract the protection of Articles 8 and 10, having regard to its reprehensible nature, it is nonetheless the task of the legislator to provide the framework for reconciling the various claims which compete for protection in this context. Such framework was not however in place at the material time, with the result that Finland’s positive obligation with respect to the applicant could not be discharged. This deficiency was later addressed. However, the mechanisms introduced by the Exercise of Freedom of Expression in Mass Media Act (see paragraph 21 above) came too late for the applicant.
The Court finds that there has been a violation of Article 8 in the present case.
Having regard to the finding relating to Article 8, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 (see, among other authorities, Sallinen and Others v. Finland, no. 50882/99, §§ 102 and 110, 27 September 2005 and Copland v. the United Kingdom, no. 62617/00, §§ 50-51, ECHR 2007 …).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
Under the head of non-pecuniary damage the applicant claimed 3,500 euros (EUR) for suffering.
The Government submitted that the award should not exceed EUR 2,500.
The Court finds it established that the applicant must have suffered non-pecuniary damage. It considers that sufficient just satisfaction would not be provided solely by the finding of a violation and that compensation has thus to be awarded. Deciding on an equitable basis, it awards the applicant EUR 3,000 under this head.
B. Costs and expenses
The applicant claimed EUR 2,500 for costs incurred during the national proceedings and the proceedings before the Court.
The Government questioned whether the applicant had furnished the requisite documentation.
The Court notes that no documentation as required by Rule 60 of the Rules of Court has been submitted. These claims must therefore be rejected.
C. Default interest
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 8 of the Convention;
2. Holds that there is no need to examine the complaint under Article 13 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.