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02.10.2017

What’s in a word? Europe’s top court backs journalists accused of using the wrong legal terms

By Emil Weber

Three Icelandic journalists have won a long-running defamation battle over the difference between using the words “investigation” (rannsókn) and “examine” (skoðun) to refer to police actions in response to complaints that have received.

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)

Recently, the European Court of Human Rights (ECtHR) has questioned the limitation of their freedom of expression, arguing that the correct content and the context of media reporting is more relevant than knowledge of detailed, technical legal terminology.

Mr. Reynir Traustason and Mr. Jón Trausti Reynisson were editors at the newspaper "DV", and Mr. Ingi Freyr Vilhjálmsson was a reporter and the author of an article which was published in March 2011. On the front page, the article was titled “Black report on [the company]: police investigate Assistant Professor” and in the inside pages its headline read “Assistant Professor entangled in police investigation”.

The article was based on a recent report of an accountancy firm hired by the liquidator of a former leading industrial company. The company was declared bankrupted in 2010. The firm’s report led the liquidator to report it to the police. A bank and another company were reported as well. The newspaper wrote that the police were “investigating” a member of the board of the bankrupt company, who was at the same time an Assistant Professor at the University of Iceland. The inquiry was in relation to company payments made for his expenses and transfer of assets to another company. It published his photograph along the article.

Examining vs investigating

Within a few days the board member’s lawyer contacted the newspaper to correct the information. He had received a letter from a prosecutor saying that the police were “examining” the complaints, though no decision had been taken yet to “instigate a police investigation”. The editor refused the request for a correction.

About six weeks after the publication, the board member lodged a defamation application at Reykjavík District Court. In March 2012, the court declared the newspaper headlines null and void and ordered the three journalists to pay 5,800 euros in non-pecuniary damage and costs of proceedings. In December that year, the Supreme Court upheld the decision.

According to the domestic courts, it was not “unreasonably difficult” for the media to verify whether or not the investigation had started. The use of the word “investigation”, they argued, damaged the reputation of the person in case.

When the journalists addressed the matter at the European Court of Human Rights (ECtHR) in 2013, the government of Iceland maintained that the term “investigation” had a clear and definite legal meaning, and that the board member “was not a public person or well-known in Icelandic society” and therefore the topic did not contribute to the public debate.

However, the First Section of ECtHR unanimously ruled on 4 May 2017 that there was a violation of the freedom of expression, as per article 10. Journalists were not expected to “distinguish between ‘investigating’ and ‘examining’ the case in question or provide specific technical details of the police proceedings”, the court said.

While at different points in time the words “examining” and “investigating” were used by the authorities (such as by the Special Prosecutor in May 2013), the court said that the journalists were aware of the accountancy firm’s report, but not aware of the email from the prosecutor which was presented to them by the lawyer only two days after the article was published.

In addition, the content of the article was relevant. “The court considers that the content of the article was limited to revealing to the reader that the police had been informed by the liquidator of a reasonable suspicion of criminal acts by the company’s board members”, the ECtHR judgment reads.

According to the ECtHR, the public interest on the topic is justifiable in the context of the 2008 financial crisis in Iceland. Similarly, it maintained that the public interest is also relevant in assessing the person’s status or how well-known the person was to the general public.

“He was an assistant professor of business studies, i.e. a university-level teacher in the field, as well as chairman of the board and one of the owners of a leading industrial firm…”, the judgement says. “Therefore, the Court cannot accept…that (he) was fully entitled to the same level of protection as a private person who is wholly unknown to the public, taking account of his professional position together with the subject matter of the article”.

Case of Traustason and Others v. Iceland, Application no. 44081/13. 4 May 2017





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