SAARISTO AND OTHERS v. FINLAND
This Article 10 ECHR case is interesting as it gives further detail on the meaning of public person and also reaffirms the role of journalistic ethics in determining an outcome.
The case concerned the report of an affair between a man (PN) who was married to but separated from a political reporter and OT, who was in charge of communications for the Aho presidential campaign. She too was married with children. OT brought an action in the Finnish courts and the key factor was whether OT was – as a political aide – a public figure. The Finnish courts held that she was not and awarded her substantial damges. The reporter and newspaper brought the matter to the ECtHR claiming that the court’s finding was an infringement of their freedom of expression, arguing that the content of the article had mainly been political and that it had concerned the Finnish presidential election campaign.
Clearly there had been a violation of freedom of expression, the question was whether it had been justified. The issue was therefore the balance between freedom of expression and the private life of OT, a not unnusual scenario. Here the development concerns OT’s status. She was not herself a politician and the matter did concern the core of her private life. The court’s reasoning follows a familiar path. First it emphasised the role of the press and its duty ‘to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest’. the Court then noted that the limits of scrutiny for a politician is wider than for a private individual as politicians ‘inevitably and knowingly lay themselves open to close scrutiny of their words and deeds by journalists and the public at large, and they must consequently display a greater degree of tolerance’. Citing Nikula (no. 31611/96, § 48, ECHR 2002-II) it noted that civil servants too must expect some criticism but not to as great a degree as politicians. As far as a person’s private life is concerned,. the Court referred to its previous case law in which it had emphasised that the story must contribute to public debate (see e.g. Tammer v. Estonia, no. 41205/98, ECHR 2001-I, §§ 59 et seq.; Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, 26 February 2002, §§ 33 et seq.). Applying these principles to the case at hand, the Court noted that the issue was presented in a neutral manner and that the facts, by comparison to the von Hannover case (Von Hannover v. Germany, no. 59320/00, §§ 50-53 and 59, ECHR 2004-VI), had not been obtained by subterfuge. On the matter of OT’s status, the Court held at para 66:
Even though she could not be considered as a civil servant or a politician in the traditional sense of the word, she was not a completely private person either. Due to her function in the presidential election campaign, she had been publicly promoting the goals and objectives of one
of the presidential candidates by belonging to his inner circle and by being therefore visible in the media during the campaign. The Court considers that, when taking up her duties as a communications officer for one of the two presidential candidates, she must have understood that her own person would also attract public interest and that the scope of her protected private life would become somewhat more limited.
As regards the question of the public interest, the Court noted that the story was published during the presidential campaign. More unusually, the Court also considered that the fact that PN’s spouse was a political journalist was also a relevant factor in determining the political significance of the story.
Finally, the Court criticised the severity of the sanctions. It noted that criminal penalties could not be ruled out altogether as a sanction for defamation but that:
the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 only in exceptional circumstances, notably where other fundamental rights have been impaired as, for example, in the case of hate speech or incitement to violence.