(Nov. 20, 2017) On November 7, 2017, the European Court of Human Rights (ECtHR) found that the Icelandic Supreme Court had erred in ruling against a claim of defamation, and “had not struck a fair balance between the applicant’s right to respect for his private life under Article 8 of the Convention [for the Protection of Human Rights and Fundamental Freedoms] and the right to freedom of expression under Article 10 of the person who had posted the remarks.” (Einarsson v. Iceland, App. No. 24703/15, ECtHR ¶ 53 (2017), HUDOC database.) The case was brought before the ECtHR under article 34 of the Convention, which gives individuals the right to bring cases before the Court when they claim to be victims of non-adherence to the Convention by a Member state. (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), Nov. 4, 1950, 213 U.N.T.S. 221, ECtHR website.)
Under article 8 of the Convention, a person has the “right to respect for his private and family life,” a right that must be protected by the courts. This right includes the right to protection of one’s reputation (Einarsson v. Iceland, ¶ 33, citing Pfeifer v. Austria, App. Bo. 12556/033 and Petrie v. Italy, no. 25322/12), provided that the accusation causes “prejudice to personal enjoyment of the right to respect for private life.” (Einarsson v. Iceland, ¶ 34, citing Springer AG v. Germany [GC], App. No. 39954/08, Delfi AS v. Estonia [GC], App. No. 64569/09, & Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], App. No. 17224/11.)
The case at hand concerned a well-known Icelandic blogger who had been cleared of charges of rape. Shortly after the case was discontinued, someone called the blogger a “rapist bastard” on Instagram and posted a distorted picture of him. (Einarsson v. Iceland, ¶¶ 5-8.) The blogger sued for defamation. The Icelandic court found that the statement did not constitute defamation, finding that the term “rapist” was used as invective during a heated online debate, and therefore was a “value judgment” protected by the right of free expression rather than a factual statement. (Id. ¶ 16.)
The ECtHR disagreed and noted that the remarks had been made shortly after the blogger had been freed of rape charges and thus were directly linked to a factual circumstance, a rape charge that had been dropped for lack of evidence. (Id. ¶¶ 50, 52.) The ECtHR found that the Icelandic court had failed to provide a sufficient explanation of its justification for finding that the word “rapist” was used in this case as a value judgment. (Id. ¶¶ 50-52.)
In conclusion, the ECtHR found that the statement was “of a serious nature and capable of damaging the applicant’s reputation. It reached such a level of seriousness as to cause prejudice to the applicant’s enjoyment of the right to respect for private life,” thus constituting a violation of article 8. (Id. ¶¶ 52.)
The Icelandic government was ordered to pay €EUR17,500 (about US$20,400) in damages to the applicant. (Id. ¶ 62(4)(a)(i).)