ECHR judgment of November 7, 2017 in the case of Egill Einarsson v. Iceland (application No. 24703/15).
In 2015, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Iceland.
The case was successfully considered a complaint about the refusal to satisfy the defamation lawsuit against a public figure accused of being a rapist. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was a famous person in Iceland, published articles, blogs and books, appeared in films, television programs and other mass media. After allegations of rape and sexual harassment against two women, a police investigation began, but both cases were subsequently terminated by the prosecutor for lack of evidence. Shortly after the termination of the second case, the applicant gave an interview to the magazine about the charges. On the day of the publication of the interview, the third person (X) published a modified version of the applicant's signature with an indecent signature ("*** rapist bastard") on his account in the social network Instagram, in the photo spread application. The applicant instituted a defamation proceedings against X, but was refused a first-instance court when the Supreme Court found that the signature in Instagram was an invective and therefore was an appraisal judgment, and not an allegation that the applicant was actually guilty of rape. In accordance with the Federal Law of May 5, 2014 N 101-FZ "On Amending the Federal Law" On the State Language of the Russian Federation "and certain legislative acts of the Russian Federation in connection with the improvement of legal regulation in the use of the Russian language" in the mass media information is prohibited from using obscene language. Since in the original text obscene expressions are used, statements that are capable of humiliating, offending the honor and dignity of a person, this fragment is cited with an exception.
In the conventional proceedings, the applicant relied on the alleged violation of the right to respect for his private life in violation of article 8 of the Convention.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. The Court had to determine whether there had been a fair balance between the applicant's right to protection of his private life in accordance with Article 8 of the Convention and the right to freedom of expression guaranteed by Article 10 of the Convention.
The domestic courts noted that the applicant was a famous person whose views, including his attitude towards women and their sexual freedom, attracted attention and caused controversy. Complaints about sexual violence on his part sparked discussions in the society in which he participated. In such circumstances, the Court concurred that the limits of acceptable criticism in the applicant's case must be broader than that of a person who is not widely known.
The Court also agreed with the courts of Iceland that, in the light of the fact that the applicant was a well-known person and the contested publication was part of the discussion on charges of a serious crime, the signature under the photograph concerned a matter of common interest.
The essence of the question put before the courts of the respondent state was not whether the headline "*** rapist bastard" was a statement of fact or an appraisal judgment. The Supreme Court concluded that there was a case of invective in the merciless public debate, which the applicant himself incited, and therefore was a value judgment. The European Court disagreed with this assessment. The term "rapist" was objective and factual in nature, referring directly to the person who committed the act of rape, which was a crime under the laws of Iceland. Thus, the veracity of the allegation of rape could be proved. Although the Court did not rule out the possibility that such an objective statement of fact, as contested in the applicant's case, could be contextually qualified as an appraisal judgment, the contextual elements justifying such a conclusion should have been convincing.
The actual context in which the signature was published stating that the applicant was a rapist was a criminal proceeding in which the applicant was accused of the crime mentioned in the signature. This trial was discontinued shortly before. However, the Supreme Court inappropriately took into account this important chronological connection. In view of the termination of the criminal proceedings against the applicant before the publication of the applicant's interview in the newspaper, the Supreme Court did not sufficiently explain the factual basis that could justify assessing the use of the term "rapist" as an appraisal judgment.
Article 8 of the Convention was to be interpreted as meaning that persons, even controversial famous people, who caused a lively discussion in connection with their behavior and public comments, should not tolerate a public accusation of violent criminal actions if such statements are not supported by facts.
As a result, domestic courts failed to establish a fair balance between the applicant's right to respect for his private life in accordance with article 8 of the Convention and right X to freedom of expression under article 10 of the Convention.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted by five votes "for" with two - "against").
In the application of Article 41 of the Convention. The establishment of a violation of the Convention is sufficient fair compensation for non-pecuniary damage.