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IRIS 2010-5:1/2

European Court of Human Rights

Flinkkilä a.o. and four other connected cases v. Finland

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Dirk Voorhoof

Ghent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for the Media

The European Court of Human Rights in five judgments of 6 April 2010 came to the conclusion that Finland had violated the right of freedom of expression by giving too much protection to the right of private life under Article 8 of the Convention. In all five cases the Court was of the opinion that the criminal conviction of journalists and editors-in-chief and the order to pay damages for disclosing the identity of a public person’s partner amounted to an unacceptable interference with the freedom of expression guaranteed by Article 10 of the European Convention of Human Rights.

All applicants in all five cases were journalists, editors-in-chief and publishing companies that were involved in the publishing in 1997 of a total of nine articles in a newspaper and in several magazines concerning A., the National Conciliator at the time, and B., his female partner. The articles focused primarily on the private and professional consequences for A. of an incident in 1996. This incident, including the revelation of B’.s identity, had earlier been reported upon in the Finnish print media and on television. During that incident A. and B. entered A.’s home late at night while A.’s wife was there and, as a result of an ensuing fight, B. was fined and A. was sentenced to a conditional term in prison. A few weeks later, a newspaper and several magazines revisited the incident and the court case, this time with more background information, interviews or comments. All articles mentioned B. by name and in addition gave other details about her, including her age, name of her workplace, her family relationships and her relationship with A., as well as her picture.

A. and B. requested that criminal investigations be conducted in respect of the journalists for having written about the incident and the surrounding circumstances. The journalists and media companies were ordered by the domestic courts to pay fines and damages for the invasion of B.’s private life. The Finnish courts found in particular that, since B. was not a public figure, the fact alone that she happened to be the girlfriend of a well-known person in society was not sufficient to justify revealing her identity to the public. In addition, the fact that her identity had been revealed previously in the media did not justify subsequent invasions of her private life. The courts further held that even the mere dissemination of information about a person’s private life was sufficient to cause them damage or suffering. Therefore, the absence of intent to hurt B. on the part of the applicants was irrelevant. The Finnish courts concluded that the journalists and the media had had no right to reveal facts relating to B.’s private life or to publish her picture as they did.

The journalists, editors-in-chief and media companies complained under Article 10 of the Convention about their convictions and the high amounts they had to pay in damages to B. Having examined in earlier case law the domestic Criminal Code provision in question, the European Court found its contents quite clear: the spreading of information, an insinuation or an image depicting the private life of another person, which was conducive to causing suffering, qualified as an invasion of privacy. In addition, even the exception stipulated in that provision - concerning persons in a public office or function, in professional life, in a political activity or in another comparable activity - was equally clearly worded. Even though there had been no precise definition of private life in the law, if the journalists or the media had had any doubts about the remit of that term, they should have either sought advice about its content or refrained from disclosing B.’s identity. In addition, the applicants were professional journalists and therefore could not claim not to have known the boundaries of the said provision, since the Finnish Guidelines for Journalists and the practice of the Council for Mass Media, albeit not binding, provided even stricter rules than the Criminal Code.

However, there had been no evidence, or indeed any allegation, of factual misrepresentation or bad faith on the part of the applicants. Nor had there been any suggestion that they had obtained information about B. by illicit means. While it had been clear that B. was not a public figure, she was involved in an incident together with a well-known public figure with whom she had been in a close relationship. Therefore, B. could have reasonably been seen as having entered the public domain. In addition, the disclosure of B.’s identity was of clear public interest in view of A.’s conduct and his ability to continue in his post as a high-level public servant. The incident was widely publicised in the media, including in a programme broadcast nationwide on prime-time television. Thus, the articles in question had not disclosed B.’s identity in this context for the first time. Moreover, even if the events were presented in a somewhat colourful manner to boost sales of the magazines, this was not in itself sufficient to justify a conviction for breach of privacy. Finally, in view of the heavy financial sanctions imposed on the applicants, the European Court noted that B. had already been paid a significant sum in damages by the television company for having exposed her private life to the general public. Similar damages had been ordered to be paid to her also in respect of other articles published in other magazines by the other applicants listed above, which all stemmed from the same facts. Accordingly, in view of the severe consequences for the applicants in relation to the circumstances of the cases, the European Court held that there had been a violation of Article 10 of the Convention in all five cases.

Under Article 41 of the Convention (just satisfaction), the Court held that Finland was to pay the applicants sums ranging between EUR 12,000 and EUR 39,000 for pecuniary damages, between EUR 2,000 and EUR 5,000 for non-pecuniary damages and between EUR 3,000 and EUR 5,000 in respect of costs and expenses.

Judgment by the European Court of Human Rights (Fourth Section), case of Flinkkilä a.o. v. Finland, Application No. 25576/04 of 6 April 2010 EN
Judgment by the European Court of Human Rights (Fourth Section), case of Jokitaipale a.o. v. Finland, Application No. 43349/05 of 6 April 2010 EN
Judgment by the European Court of Human Rights (Fourth Section), case of Iltalehti and Karhuvaara v. Finland, Application No. 6372/06 of 6 April 2010 EN
Judgment by the European Court of Human Rights (Fourth Section), case of Soila v. Finland, Application No. 6806/06 of 6 April 2010 EN
Judgment by the European Court of Human Rights (Fourth Section), case of Tuomela a.o. v. Finland, Application No. 25711/04 of 6 April 2010 EN