18 EINARSSON v. ICELAND JUDGMENT - SEPARATE OPINION DISSENTING OPINION OF JUDGE LEMMENS 1. The facts in this case are undisputed. X took a copy of the picture of the applicant as it appeared on the front page of a magazine in which an interview with him had been published, drew and wrote a comment on it, added the caption “Fuck you rapist bastard” (in English) in small letters under the picture, and posted the edited picture on his Instagram account (see paragraph 8 of the judgment). The applicant brought defamation proceedings against X. His claim was rejected by both the District Court and the Supreme Court. The latter court examined whether the expression involved a value judgment or a factual statement. It held that, while the term “rapist” could refer to someone accused of having committed rape, in the context of the altered picture and the whole caption its use had to be understood as invective in a ruthless public debate, and therefore as a value judgment, not as a factual statement (see the quotation in paragraph 16 of the present judgment). Upon this basis it acquitted X. 2. The majority find that Article 8 of the Convention has been violated. I respectfully dissent. 3. The majority are somewhat ambiguous on the importance of the classification of the expression as a statement of fact or a value judgment for the examination of the complaint. On the one hand, they deal with the issue of classification at length and criticise the Supreme Court for its conclusion that the expression was a value judgment (see paragraphs 48-52 of the judgment). On the other hand, they also discuss the hypothesis that the expression could be considered a value judgment (see paragraph 52 of the judgment). Whether an expression is a statement of fact or a value judgment is important when domestic law requires the contents of the expression to be proven. As the majority rightly point out, the existence of facts can be demonstrated, while the truth of a value judgment is not susceptible of proof (see paragraph 40 of the judgment). But the domestic defamation proceedings did not – or at least did not explicitly – turn on the question whether X had proven what he wanted to express. Having regard to Article 235 of the Penal Code (quoted in paragraph 19 of the judgment), the question was whether X had alleged anything that might be harmful to the applicant’s honour. In my opinion, the question whether the expression was a statement of fact or a value judgment is a relevant issue, but not a decisive one. Even the question whether or not there was a sufficient factual basis to support the expression is not decisive. The issue before our Court is whether the domestic courts struck a fair balance between the applicant’s right to respect for his private life and X’s right to freedom of expression. 4. I will nevertheless concentrate on the majority’s discussion of the classification of the expression at hand.