Einarsson v. Iceland (Application no. 24703/15)  ECHR 7 November 2017
The European Court of Human Rights (ECtHR) has overturned a decision of the Iceland Supreme Court and upheld a well-known commentator’s right to respect for his private life under Article 8 of the European Convention on Human Rights (the Convention), over an individual’s right to exercise freedom of expression under Article 10 in the context of an Instagram post accusing him of rape.
Mr Egill Einarsson is a well‑known person in Iceland who, for several years, had obtained notoriety via published articles, blogs, books, films, television and in other media under various pseudonyms. Mr Einarsson expressed views about his attitudes towards women and their sexual freedom and in some instances, recommending that women should be subjected to sexual violence.
In 2011 and 2012, two women reported to the Police that Mr Einarsson had committed sexual offences against them. Police investigated and dismissed both complaints. Mr Einarsson then submitted a complaint to the Police alleging the women had made false accusations against him, which was also dismissed.
Subsequently, X published an altered version of the front page of a magazine featuring a picture of Mr Einarsson and an interview in which he commented on the rape allegations made against him. The altered image of Mr Einarsson included the caption "Fuck you rapist bastard." This image was published on X's personal Instagram account.
X had approximately 100 individuals who were "followers" on Instagram and had believed that only those followers had access to the items X published. However, X's pictures were also accessible to other Instagram users in the public domain. The following day, a newspaper published an online article about X's post, republishing the altered picture to a wider audience.
Mr Einarsson lodged defamation proceedings against X before a District Court. The District Court found against him, and determined that X's statement was within the bounds of freedom of expression. The altered picture and the words presented by X were determined to constitute a value judgment rather than a statement of fact.
Mr Einarsson appealed to the Supreme Court of Iceland. The Supreme Court upheld the District Court's decision. The judgment examined Mr Einarsson own history of publishing controversial views including his attitudes towards women. It was found that when Mr Einarsson gave the newspaper interview and employed provocative comments about the women who had accused him of sexual offences, he launched a public debate and should, moreover, "have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views".
The ECtHR was required to balance the right to respect for private life and reputation, against the right to freedom of expression. It noted that relevant factors in assessing this balance may include "the contribution to a debate of general interest; how well known is the person concerned and what is the subject of the report; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanctions imposed". In addition, in order to assess the justification for an impugned statement, distinction needed to be made between statements of fact and value judgments.
How well known was the applicant, the subject matter and the applicant's conduct prior to the publication of the impugned statement?
The Court agreed with the findings of the Icelandic courts that the limits to acceptable criticism in this case must be wider than the case of an individual who is not well known. However, it was stated that even well-known persons have legitimate expectations of respect for their private life.
Contribution to a debate of general interest
The Court also agreed with the domestic courts that in light of the fact that Mr Einarsson was a well‑known person and the impugned statement was part of general debate concerning accusations of a serious criminal act, it was an issue of general interest.
Content, form and consequences of the impugned publication – was the publication a statement of fact or a value judgment?
The ECtHR disagreed with the domestic courts on this criterion. It considered the term ‘rapist’ to be “objective and factual in nature” and while not excluding the possibility that an objective statement of fact “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”. It found that the factual context in which the impugned statement was made and its allegation that Mr Einarsson was a "rapist" after the discontinuation of the criminal proceedings against him had not been adequately taken into account.
Even as a value judgment, there needs to be sufficient factual basis to support such a statement and there was not in this case after the discontinuance of criminal proceedings. The Court stated:
"In short, Article 8 of the Convention 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 publically 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. It reached such a level of seriousness as to cause prejudice to the applicant's enjoyment of the right to respect for private life for Article 8 to come into play."
It was held that the Icelandic courts had failed to strike a fair balance between the Mr Einarsson’s right to respect for private life and X's right to freedom of expression – there was a violation of Mr Einarsson’s right to privacy.
This case highlights the difficulties associated with the balancing of competing rights of privacy and reputation on the one hand and freedom of expression on the other.
Despite acknowledging that domestic courts are the appropriate forums to determine the classification of a statement as a fact or value judgment, the ECtHR substituted its own view in this case. The ECtHR focused on the chronological link between the discontinuation of the criminal cases against Mr Einarsson, which was seen to remove any factual basis for him being called a "rapist", and the publishing of the statement only a week later. Less weight was given to the intensity of the public debate caused by Mr Einarsson’s interview or that he was a very well‑known man who had relied upon a pattern of discourse of provocative and controversial comments against women, which the Iceland courts had considered in detail. In this context, the Iceland courts had viewed the term "rapist" to be invective, or a value judgment, rather than a statement of fact.
This decision may be contrasted with the decision of the ECtHR of Tamiz v The United Kingdom (Application no.3877/14  ECHR (12 October 2017) in which the Court reinforced the importance of freedom of expression in the context of online forums. In that case, vulgar comments posted on a blog operated by Google Inc (including that a politician was a "violent racist") were held to be too trivial in character and not distributed widely enough to pose a risk to the applicant's reputation to warrant restricting the freedom of expression of Google Inc and its users. It was highlighted that comments of this nature were common on the Internet and, as a politician, Tamiz was expected to tolerate them. In contrast, in the Einarsson decision, the reference to the crime of rape, and the scale of the audience, tipped the balance in favour of the right to privacy.
In the #MeToo era of widespread social media publication of accusations of rape and sexual harassment by public figures and celebrities this decision has some interesting implications. The decision prioritises an accused's right to privacy over a sexual assault victim's right to freedom of expression in the social media space where allegations of sexual assault have been dismissed by police or the courts. The combined effect of Tamiz and Einarsson suggests that the tipping point in favour of the victim will be somewhere between an allegation of violent racism and an allegation of a violent sexual offence, and will depend on timing and how wide an audience the statement goes to.
This decision also has some interesting implications for social media users and media outlets. The Court placed emphasis on the fact that X had mistakenly believed that the Instagram post was private, however it was in fact public and it had been exposed to some potential 100 million Instagram users. The Instagram post then obtained a wider audience when reposted by a media outlet, without which the post was unlikely to have garnered the attention it did. The Court provided no commentary in respect of the responsibility of media outlets in reposting and commenting on provocative or offensive material. Had this situation occurred in Australia, the relevant media outlet may have been exposed to potential defamation proceedings.
The ECtHR decision appears to shift the balance in favour of the privacy of those accused of violent criminal acts over a potential victim’s freedom of expression via private social media accounts, at least in circumstances where police have dismissed charges or allegations have not been proved in court.
The full decision can be found here.
Our case note on Tamiz v The United Kingdom (Application no.3877/14  ECHR (12 October 2017) can be found here.
Angela Martignago is Special Counsel at Curwoods Lawyers.