Ólafsson v. Iceland: Should journalists always seek “appropriate legal advice” from now on?

By Oleg Soldatov 

According to the European Convention on Human Rights (the “Convention”), freedom of expression, protected by Article 10, is not limitless. In particular, paragraph 2 of said Article proclaims that the exercise of freedom of expression “carries with it duties and responsibilities” and may be subject to exceptions necessary “for the protection of the reputation or rights of others,” among other reasons (see, for general discussion, Oetheimer , 2007).

Whenever the European Court of Human Rights (the Court, the “ECtHR”) has to determine whether an interference with this right by public authority was justified, it scrutinises whether limitations under dispute a) are “prescribed by law”, b) “pursue a legitimate aim” and c) are “necessary in a democratic society”, following the linguistic structure of the second paragraph of Article 10 of the Convention.

Ólafsson v. Iceland presents, at first glance, an ordinary illustration of how the ECtHR goes about such analysis.

The case deals with an applicant (Mr Steingrímur Sævarr Ólafsson) who was an editor of the website “Pressan”. Between 7 November 2010 and 30 May 2011, this website published a series of articles relating to allegations of child abuse against Mr A, allegations which had been made by two adult sisters with family ties to Mr A. At the time, Mr A was standing in the forthcoming Constitutional Assembly elections. The sisters maintained that they had been sexually abused by Mr A and warned the general public that the latter could not stand for public office on this ground. It should be noted that the sisters raised these allegations in a separate, earlier, publication on their own website, dated 2 November 2010. Mr A denied all of the allegations. Allegedly, Mr A’s lawyer contacted the sisters, offering to settle the matter, failing which Mr A would institute defamation proceedings against them. However, Mr A brought a defamation claim against the editor of the website “Pressan” instead.

Eventually, the country’s Supreme Court declared the statements relating to the child abuse by Mr A null and void, ordering the editor of the website “Pressan” to pay € 1'600 for non-pecuniary damage and € 6'500 in costs.

The ECtHR Court analysis reaffirmed a range of important points already covered in its case-law (Couderc and Hachette Filipacchi Associés v. France and Erla Hlynsdóttir v. Iceland ), namely, that the candidates running for public office in general elections must be considered to have inevitably and knowingly “entered the public domain and laid themselves open to closer scrutiny of their acts.” This means that the boundaries of acceptable criticism must accordingly be drawn wider than in cases of private individuals.

At the same time, this does not mean that in such cases journalists are free from the obligation to rely on “sufficiently accurate and reliable” factual basis which can be considered proportionate to the nature and degree of their allegations (Erla Hlynsdóttir v. Iceland ). Last but not least, when it comes to sources of information, the Court once again acknowledged that punishment of a journalist for assisting in the dissemination of statements made by another person “would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so” (Delfi AS v. Estonia ).

However, what is rather peculiar in the present case is the way in which the ECtHR approached the analysis from the viewpoint of what is “prescribed by law”. On the one hand, the Court is of the opinion that the law should be accessible to the persons concerned and formulated with sufficient precision to enable them to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. On the other hand, when applying these principles in the present case, the ECtHR sided with the Icelandic Supreme Court, which had found that “under domestic law the applicant, as editor, was subject to an unwritten supervisory duty consisting of preventing the publication of harmful content on the website, referring in this regard to a previous Supreme Court judgment in case no. 100/2011”.

The ECtHR then continues this line of reasoning, ultimately concluding that the liability was foreseeable with appropriate legal advice and, thus, prescribed by domestic law within the scope of Article 10 § 2 of the Convention. To reiterate, in the present case it was not the absence of “lawfulness” that lead the ECtHR to finding Article 10 violation (like, for instance, in Editorial Board of Pravoye Delo and Shtekel v. Ukraine ), but the fact that the domestic courts failed to strike a reasonable balance between the measures restricting Ólafsson’s freedom of expression, and the legitimate aim of protecting the reputation of others.

In the author’s view, a journalistic duty to be up-to-date with the relevant domestic court precedents can be considered a rather onerous one, especially in those states, which, like Iceland (Tryggvadóttir et al, 2010 ), are civil law and not common law countries. This means that “black letter law” review of applicable statutory provisions concerning journalistic liability is no longer sufficient to draw conclusions concerning whether certain actions of the State are “prescribed by law” within the ambit of Article 10 § 2 of the Convention. To be on the safe side, journalists from now on should pay particular attention to relevant case-law developments in their countries and, if necessary, err on the side of caution and seek legal advice.

* Oleg Soldatov is a PhD researcher at Bocconi University in Milan, Italy. He used to work as a lawyer at the European Court of Human Rights in 2011-2014 and as a legal advisor at the Council of Europe in 2015-2016