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07.11.2017

Top European court protects Icelandic writer labelled 'rapist' in Instagram

by Emil Weber

The top European human rights court ruled on Tuesday that an altered picture of an Icelandic author accompanied by the caption “Fuck you rapist bastard” - published in Instagram by a citizen - amounted to an unsupported factual statement violating the writer’s right to a private life.

The European Court of Human Rights (ECtHR) in Strasbourg The European Court of Human Rights (ECtHR) in Strasbourg (photo: Nicoleon, Cour européenne des droits de l'homme, CC BY-SA 4.0)

The European Human Rights Court (ECthR) awarded the injured author 17,500 euros in damages and the costs of the court proceedings.

From a media ethics perspective, the case is relevant also because it deals with an Instagram publication published in media, thus further expanding the case law dealing with internet regulation. 

Mr. Egill Einarsson, a well-known author and TV personality, was reported to the police in 2012 by two women in separate cases for rape and sexual offence.

During the same year, the cases were dismissed by the prosecution as they were deemed not backed by enough evidence to lead to a conviction. Mr. Einarsson’s counter-claim that the two women were making false accusations was also dismissed.

 "Ulterior motives"

Following the prosecutor’s decisions, Mr. Einarsson gave an interview to a magazine speaking about the nature of the accusations against him calling them in retrospective a “screaming conspiracy” under “ulterior motives”. On the same day, a person used the magazine’s front page picture of Mr. Einarsson, altered it, and published it in Instagram captioned with the phrase “Fuck You rapist bastard”. 

Mr. Einarsson’s applications for defamation at the District Court of Reykjavík and later the Supreme Court were dismissed as the courts found the impugned statement was a value judgement, the topic was in the interest of the public debate, and Mr. Einarsson was a well-known public figure. 

Weighing the right to private life and the right to freedom of expression - articles 8 and 10 respectively of the European Convention - the ECtHR’s Second Section agreed on 7th November with the domestic courts that Mr. Einarsson was a well-known public figure and that the topic was of public interest.

However, it said that there was a violation of the article 8 due to the content and the context of the impugned statement. 

“The Court notes that the term ‘rapist’ is objective and factual in nature. It directly refers to a person who has committed the act of rape…”, the ECtHR said. “The veracity of an allegation of rape can therefore be proven”.

Rape case dropped for lack of evidence

The ECtHR said that although in certain contexts such a statement could be considered a value judgement, it should be backed by a convincing factual basis. In this case, it stated, the domestic courts failed to take into account the fact that the alleged criminal cases had been dropped for lack of evidence.

“In the light of the discontinuance of the criminal proceedings against the applicant just prior to the publication of the applicant’s newspaper interview, the Supreme Court failed to explain sufficiently the factual basis that could have justified assessing the use of the term ‘rapist’ as a value judgement, the Supreme Court merely referring […] to the applicant’s participation in a ‘ruthless public debate’ which he had ‘instigated’ when he gave the interview in question”, the ECtHR ruled.

According to the top European court, “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”.

Case of Egill Einarsson v. Iceland, application no. 24703/15. 7 November 2017





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