January 19, 2018
This guest post was written by Ingrida Milkaite, Ghent University*
On 7 November 2017 the European Court of Human Rights (the ECtHR, the Court) found a violation of Article 8 of the European Convention on Human Rights. The main issue at hand was the Court’s assessment of whether the right balance between the applicant’s right to privacy (Article 8) and Mr X’s right to freedom of expression (Article 10) was struck by national courts.
Mr Egill Einarsson is a well-known public figure in Iceland. He could be described as a television personality, radio show host, writer of blogs, articles and books, motivational speaker, bodybuilder, fitness coach, model, DJ and singer. Over the years, he has expressed controversial derogatory opinions about women, allegedly recommended that they should be subjected to sexual violence and has been accused of racism. In 2011-2012, two women approached the police – an 18-year-old woman accused Mr Einarsson of rape while another woman claimed that he had committed a sexual offence against her. Both cases were eventually dismissed because the evidence was insufficient and unlikely to lead to a conviction. (§ 6) Exactly one week after the second case was dismissed, Mr Einarsson gave an interview to a leading Icelandic newspaper and discussed the rape accusations. He also appeared on the front page of that newspaper.
‘On the same day, X published an altered version of the applicant’s front-page picture with the caption “Fuck you rapist bastard” on his account on Instagram, an online picture-sharing application. X had altered the picture by drawing an upside down cross on the applicant’s forehead and writing “loser” across his face’. (§ 8)
Mr X, who had around 100 followers at the time, believed that his Instagram account was private but it was actually public. The following day a newspaper published an article about the post and the interview, also including the altered Instagram picture. After an unfruitful exchange between lawyers, Mr Einarsson lodged defamation proceedings against Mr X.
Mr Einarsson asked the District Court of Reykjavík to sentence Mr X to criminal punishment, declare the statement “Fuck you rapist bastard” null and void and order Mr X to pay him around 8,800 euros in non-pecuniary damages as well as his legal costs. Yet, the District Court found against Mr Einarsson and decided that the altered picture and the text contained Mr X’s opinion of Mr Einarsson, which indicated a strong dislike, and that the picture and its caption have been a part of general public debate as the applicant was a well-known person and had to accept being the subject of public discussions. (§ 13)
Mr Einarsson appealed to the Supreme Court of Iceland which upheld the District Court’s conclusion. The Supreme Court noted that Mr Einarsson’s views (including the views towards women and their sexual freedom) attracted some attention and controversy, ‘there were instances when his criticism had been directed towards named individuals, often women, and in some cases his words could be construed to mean that he was in fact recommending that they should be subjected to sexual violence.’ By giving the interview and expressing his provocative, derogatory views, the applicant launched a public debate and should ‘have known that his comments would result in strong reactions from those who strongly disliked his […] views.’ (§ 16) The Supreme Court stressed that account must be taken of the context in which the term “rapist” was used and confirmed that, in this case, Mr X’s expressions are to be considered as a value judgement within the limits of freedom of expression.
Judgment of the ECtHR
When evaluating whether the right balance between Mr Einarsson’s right to privacy and Mr X’s right to freedom of expression was struck by national courts, the Court firstly noted that ‘[w]here the national authorities have weighed up the interests at stake […], strong reasons are required if it is to substitute its view for that of the domestic courts’. In a case like this one, the assessment of an impugned statement also entails the distinction between statements of fact (susceptible of proof) and value judgments (not susceptible of proof). According to the ECtHR, ‘[t]he classification of a statement as a fact or as a value judgment is a matter which […] falls within the margin of appreciation of […] the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive.’ (§ 40) Crucially, the evaluation of the balance struck by national courts entails the analysis of certain criteria already proclaimed by the Court in the cases of Axel Springer AG v. Germany and Von Hannover v. Germany (no. 2) (§ 39). Regarding this case, the following criteria were evaluated.
‘the term “rapist” is objective and factual in nature. It directly refers to a person who has committed the act of rape […]. The veracity of an allegation of rape can therefore be proven. […] the statement “Fuck you rapist bastard” included a statement of fact as it clearly assigns the status of “rapist” to the person who is the subject of the statement. Although the Court does not exclude the possibility that an objective statement of fact, such as the one impugned in the present case, can, contextually, be classified as a value judgment the contextual elements justifying such a conclusion must be convincing in the light of the objective and factual nature of the term “rapist” taken at face value.’ (§ 50)
‘Article 8 […] must be interpreted to mean that persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts. The Court therefore finds that the statement was of a serious nature and capable of damaging the applicant’s reputation.’ (§ 52)
By five votes to two, the Court found a violation of Article 8 ECHR and decided that a finding of a violation constitutes in itself sufficient just satisfaction.
Judges Paul Lemmens (Belgium) and Stéphanie Mourou-Vikström (Monaco) provided their dissenting opinions. Judge Lemmens, in essence, disagreed with the ECtHR’s decision to consider the term “rapist” a statement of fact. He noted that ‘[a]n assessment of the meaning of a given word, read in its context, is typically one for which the domestic judge is better placed than the European Court.’ He also was of the opinion that the Instagram post was a mere reaction to the interview of Mr Einarsson and a manifest expression of disapproval of what the applicant had stated. He agreed with the Icelandic Supreme Court’s assessment that ‘in this context the word “rapist” had lost its objective meaning and had to be understood as a swear word against the applicant.’ Judge Lemmens explained that
‘by using the term “rapist”, X was not stating that the applicant had committed the crime of rape, but was merely expressing disapproval in the form of invective. Having regard to the subsidiary nature of the European Court’s role, there is in my opinion no “cogent reason” to depart from this assessment.’
Judge Mourou-Vikström stressed that the applicant’s personality and past remarks have to be taken into account, bearing in mind that the applicant’s expressions could be construed to mean that he was recommending that women be subjected to sexual violence. The Judge did not agree that there had been a violation of Article 8 ECHR as the applicant
‘could not claim the protection of Article 8 to the same degree as an accused person acquitted of rape who had made no remarks or controversial statements concerning women and sexual assault. The applicant’s public, controversial and provocative statements shifted the boundary between an allegation of fact and a value judgment. Thus, the domestic courts were entitled to consider that the impugned comments […] referred more generally to the views aired by the applicant in the past.’
Balancing freedom of expression and privacy rights, both deserving equal respect, is not an easy task. In essence, what the ECtHR did in this case is give a different interpretation on the decision adopted by national courts, who are in fact better suited for the assessment of an impugned statement, without providing “cogent” or “strong” reasons as required by its own jurisprudence.
First of all, when assessing if the national courts struck a fair balance between Article 8 and Article 10, the Court stated that the Icelandic courts failed to take adequate account of the chronological link between the discontinuance of the criminal cases against Mr Einarsson and the Instagram post since these events are separated by only one week, perhaps imposing that Mr X (an ordinary citizen and not a journalist who could maybe be expected to know) ought to have known that his statement was not true. (§ 51) Even so, this circumstance, as also assessed by the national courts, only proves the intensity of the public debate surrounding the matter. The same can be said about the fact that the Instagram post was published online by an Icelandic newspaper the following day, giving even more weight to the public debate argument in this case (and republishing the picture and the phrase on a much greater scale).
Next, the Court provides that ‘the Supreme Court failed to explain sufficiently the factual basis that could have justified assessing the use of the term “rapist” as a value judgment’ (§ 52), despite the fact that the national courts did in fact take account of the context in which the term is set, analysed the different possibilities of justification and, as they are better suited to so decide than the ECtHR, stated that ‘this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter […] has instigated.’ (§ 16) It is thus quite striking that the ECtHR stresses, not once but several times, that the domestic courts are in a better position to decide on these matters but in the end the ECtHR takes their place anyway.
Interestingly, the judgment offers some insight on the higher level of tolerance which well-known people may be expected to have. In § 52 the Court proclaims that ‘persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts’. Reference can be made to another recent ECtHR case Tamiz v. the UK, where a budding politician was called, among other things, a “known drug dealer”, “criminal” and “fake asylum claim”. Here, however, the ECtHR stressed the fact that millions of internet users post possibly offensive or even defamatory comments online every day, but the majority of these comments are likely to be too trivial in character or their publication too limited to cause any significant damage to another person’s reputation. In this sense, the ECtHR noted that the applicant was a budding politician and, thus, would be expected to have a higher tolerance threshold (Tamiz v. the UK blogpost on Strasbourg Observers). In that regard, the question arises whether there actually is a major difference between a “drug dealer” and a “rapist” and whether one could be considered more violent than the other.
Finally, the Court attached some importance to the fact that Mr X’s Instagram account was not private (§ 46), irrespective of the fact that he had believed it was (§ 9, 11). Mr Einarsson claimed that the picture was accessible to all (approximately 100 million) Instagram users worldwide but it is questionable how much weight such a theoretical situation should be given since it would require either numerous “re-shares” of the picture or all 100 million users visiting Mr X’s Instagram profile. Even if we accept the idea that each private person should be privacy-savvy, privacy-educated, aware and feel enhanced responsibility when it comes to the practice of their freedom of expression online, it is interesting that the ECtHR seems to be judging Mr X somewhat more stringently since he did not set his Instagram account to “private”. In fact, it might not be as easy as the Court seems to assume, as it is not a “pre-ticked box” and many adults, as well as children and adolescents, do not always know that such a possibility exists or simply do not know how to enable it. Even if one does opt for a private account, meaning that only people they approve can see the posts, it does not protect the user from re-posts (through the repost function or a simple screenshot by their followers). Indeed, a screenshot of the disputed picture is still available through a simple Google search.
Notably, in the context of the current #MeToo movement and the widespread allegations of sexual violence in many countries, this judgment has been named worrying. However, it is also true that people are attacked and accused online, e.g. on social media platforms such as Facebook, Twitter and Instagram, even when they have not been convicted of a sexual offence. Perhaps, such context and the heated public debate surrounding these issues should play an even bigger role when deciding on cases like the present one.
* Ingrida Milkaite is a doctoral student in the research group Law & Technology at Ghent University. She is working on the research project “A children’s rights perspective on privacy and data protection in the digital age: a critical and forward-looking analysis of the General Data Protection Regulation and its implementation with respect to children and youth” (Ghent University, Special Research Fund).