12
EINARSSON v. ICELAND JUDGMENT
discussions about his professional activities and the complaints against him
of sexual violence. Furthermore, the Supreme Court stated: “When the
[applicant] appeared in the aforementioned newspaper interview and
employed provocative, if not derogatory, comments about others, including
the girl who had accused him of sexual violence, 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 Court agrees with the domestic courts that, in the light of the
fact that the applicant was a well-known person and the impugned statement
was a part of a debate concerning accusations of a serious criminal act, it
was an issue of general interest. The Court will now examine whether, due
to the content, form and consequences of the impugned publication the
national courts struck a fair balance between the applicant’s rights under
Article 8 of the Convention and X’s rights under Article 10.
(iii) Content, form and consequences of the impugned publication
46. The Supreme Court, in its judgment of 20 November 2014, stated
that the altered picture along with the caption had been accessible not only
to X’s followers on Instagram, but to other users of the medium as well. The
court concluded that, either way, it had been made available publicly and
therefore came under Article 236 of the Penal Code. The Court sees no
reason to disagree with the Supreme Court’s assessment on this point. In
that respect the Court deems important to recall its previous case-law where
it has recognised that in the light of its accessibility and its capacity to store
and communicate vast amounts of information, the Internet plays an
important role in enhancing the public’s access to news and facilitating the
dissemination of information in general. At the same time, the risk of harm
posed by content and communications on the Internet to the exercise and
enjoyment of human rights and freedoms, particularly the right to respect
for private life, is certainly higher than that posed by the press (see, inter
alia, Delfi AS v. Estonia, § 133, cited above).”
47. The crux of the matter before the domestic courts was whether or not
the statement “Fuck you rapist bastard” had been a statement of fact or a
value judgment. The majority of the Supreme Court, in its judgment, stated:
“Although it can be agreed that by using the term ‘rapist’ about a named
person, that person is being accused of committing rape, account must be
taken of the context in which the term is set, cf. the ruling of the Supreme
Court on 29 January 2009 in Case No 321/2008. If the altered picture and
the comment ‘Fuck you rapist bastard’ are taken as a whole – as the parties
agree should be the case – the Supreme Court agrees with the District Court
that this was a case of invective on the part of [X] against the [applicant] in
a ruthless public debate, which the latter, as stated previously, had
instigated. It was therefore a value judgment about the [applicant] and not a
factual statement that he was guilty of committing rape. In this context, it
Sélectionner le paragraphe cible3
Se connecter à un paragraphe
Connect to an entity
Disable highlights
Ajouter à la table des matières