Reference:  EMLR 1
Court: European Court of Human Rights
Judge: Costa (President), Baka, Turmen, Ugrekhelidze, Fura-Sandstrom, Jociene, Popovic (Judges) and Dolle (Section registrar)
Date of judgment: 19 Sep 2006
Summary: Human rights - Right to protection of reputation - Article 8 - Freedom of expression - Article 10 - Defamation - Criminal defamation - Gross defamation - Allegation of murder - Allegation not proven but held 'justifiable' to print on 'reasonable basis'
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In September and October 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet, published a series of articles in which various criminal offences were ascribed to the applicant, including an assertion that he had murdered Olof Palme, the Swedish Prime Minister, in 1986. The newspapers also reported statements of individuals who rejected the allegations made against the applicant and Expressen published an interview with the applicant, in which he denied any involvement in the alleged offences. The applicant brought a private prosecution for defamation and gross defamation against the newspapers’ editors under the Freedom of the Press Act and the Criminal Code. The editors were found not guilty and the applicant’s appeals were dismissed on the basis that it was ‘justifiable’ to print the information, given its subject matter, and the defendants had shown a ‘reasonable basis’ for it.
Whether the Swedish courts had failed to provide due protection for the applicant’s name and reputation so as to breach his right to respect for his private and family life under Article 8 of the European Convention on Human Rights.
Finding no breach of Article 8; the publication of the statements and pictures relating to the applicant fell within the scope of his private life, within the meaning of Article 8. The protection of this must be balanced against the freedom of expression guaranteed by Article 10 of the Convention. Although the publications were defamatory of the applicant, the journalists of the two newspapers acted in good faith and endeavoured to present an account of the various allegations made which was as balanced as possible in the particular circumstances. In respect of the Swedish State, the domestic courts made a thorough examination of the case and balanced the conflicting values guaranteed by the Convention in conformity with Convention standards. In the circumstances of the case, they were justified in finding, in their discretion, that the public interest in publishing the information in question outweighed the applicant’s right to the protection of his reputation.
Advocating a test akin to that for Reynolds privilege, the Court held that ‘special grounds’ can justify a departure from the general requirement on defendants to prove the truth of their defamatory factual statements. Whether such grounds exist will depend “in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations.” The Court held that here such grounds did exist, the newspapers having acted in good faith, made extensive enquiries and attempted to present their articles in as balanced a manner as possible in the circumstances.