NISKASAARI AND OTAVAMEDIA OY v. FINLAND JUDGMENT
9
their special features. The Government referred in this respect to the
subsidiarity principle. In their view, the impugned measures could be
regarded as proportionate to the legitimate aim pursued and the reasons
adduced by the domestic courts had been relevant and sufficient. There was
thus no violation of Article 10 of the Convention.
2. The Court’s assessment
a. Whether there was an interference
40. The Court agrees that the first applicant’s conviction and the award
of damages and costs imposed on both applicants constituted an interference
with their right to freedom of expression, as guaranteed by Article 10 § 1 of
the Convention.
b. Whether it was prescribed by law and pursued a legitimate aim
41. The Government’s position was that the impugned measures had a
basis in Finnish law, namely in Chapter 24, section 9, of the Penal Code and
in Chapter 5, section 6, of the Tort Liability Act, and that the interference
complained of pursued a legitimate aim, namely the protection of the
reputation or rights of others. The applicants did not dispute that position.
42. The Court for its part, likewise accepts that the interference, based
on Chapter 24, section 9, of the Penal Code, was “prescribed by law” (see
Nikula v. Finland, no. 31611/96, § 34, ECHR 2002-II; Selistö v. Finland,
no. 56767/00, § 34, 16 November 2004; Karhuvaara and Iltalehti
v. Finland, no. 53678/00, § 43, ECHR 2004-X; and Eerikäinen and Others
v. Finland, no. 3514/02, § 58, 10 February 2009) and that it pursued the
legitimate aim of protecting the reputation or rights of others, within the
meaning of Article 10 § 2.
c. Whether the interference was necessary in a democratic society
43. According to the Court’s well-established case-law, freedom of
expression constitutes one of the essential foundations of a democratic
society and one of the basic conditions for its progress and each individual’s
self-fulfilment. Subject to paragraph 2 of Article 10 of the Convention, it is
applicable not only to “information” or “ideas” that are favourably received
or regarded as inoffensive or as a matter of indifference, but also to those
that offend, shock or disturb. Such are the demands of pluralism, tolerance
and broadmindedness, without which there is no “democratic society”.
Given that the exceptions set out in Article 10 § 2 must be strictly
construed, the need for any restrictions must be established convincingly
(see, for example, Lingens v. Austria, 8 July 1986, § 41, Series A no. 103;
and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43,
ECHR 1999 VIII).
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