EHRM: laster van een bekende blogger door de woorden "fuck you rapist bastard" op Instagram

EHRM 7 november 2017, IEF 17358; IEFbe 2432; IT&R 2441; Application no. 24703/15 (Egill Einarsson tegen IJsland). Privacy. Vrijheid van meningsuiting. Een bekende blogger, de heer Einarsson, klaagt over een uitspraak van het IJslandse Hooggerechtshof, waarin werd vastgesteld dat er geen sprake was van laster door de woorden "fuck you rapist bastard" die bij een post op Instagram van de blogger werden geplaatst. Het strafrechtelijk onderzoek naar het plegen van seksueel geweld door deze blogger was net gestaakt. Het EHRM is het niet met de IJslandse rechtbanken eens dat de post een waardeoordeel inhoudt. Het woord 'rapist' is objectief en impliceert een aantijging van verkrachting. Nu het strafrechtelijk proces geseponeerd werd verviel de feitelijke onderbouwing van de aantijging. Het EHRM constateert dat de rechtbanken geen 'fair balance' hebben gevonden tussen het recht van de heer Einarsson op eerbiediging van zijn privé-leven krachtens artikel 8 EVRM en het recht op vrijheid van meningsuiting van de persoon die de opmerking had gepost krachtens artikel 10 EVRM. 

Uit het persbericht:

The case concerned the complaint by a well-known blogger about a Supreme Court ruling, which found that he had not been defamed by the words “Fuck you rapist bastard” used in an Instagram post about him. Prosecutors had just before dismissed rape and sexual offence accusations against him.

Relying on Article 8 (right to respect for private and family life), Mr Einarsson complained that the Supreme Court judgment meant that he could be called a rapist without being charged or convicted of such a crime and without being able to defend himself.

The Court considered that the crux of the case before the domestic courts had been whether the words “Fuck you rapist bastard” had been a value judgment or a statement of fact. The domestic courts had found that the remarks were a value judgment when viewed “in context”, referring to “a ruthless public debate” instigated by Mr Einarsson when he had made comments in the interview given to the magazine about the sexual offence accusations against him.

The Court noted that the word “rapist” was objective and factual in nature and that an allegation of rape could be proven. Although it did not exclude the possibility that an objective statement could, contextually, be classified as a value judgment, the contextual elements leading to such a conclusion had to be convincing when it came to the word “rapist”.

The Court observed that the domestic courts in their conclusion had relied primarily on Mr Einarsson’s involvement in a public debate as the context for the Instagram post and their finding that the statement was a value judgment. However, the domestic courts had failed to take adequate account of the chronology of the events in question: proceedings for one of the sexual offence allegations had been discontinued only a week before the Instagram post. That meant that the factual context of the statement was the criminal proceedings in which Mr Einarsson had been accused of the act the Instagram post had referred to, but which had been discontinued for lack of evidence.

The Court considered that the domestic courts had not taken account of relevant and sufficient elements to justify their conclusion that the disputed remarks were a value judgment. Even assuming that the Court accepted that conclusion, it noted that under its case-law the statement would still need a sufficient factual basis. However, the domestic courts had failed to explain sufficiently the factual basis for their decision given that the sexual offence proceedings had been discontinued. The Court underlined that Article 8 had to be interpreted to mean that even public persons who had begun a heated debate did not have to tolerate being accused of violent criminal acts without such statements being supported by facts.

Overall, the domestic courts had failed to strike the required fair balance between the competing rights of Mr Einarsson and of X, under Article 8 and Article 10 respectively. There had therefore been a violation of Article 8.

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 makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed” (see paragraph 16 above).

48. The Court reiterates that the classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. The Court may, however, consider it necessary to make its own assessment of the impugned statements (see, for example, Brosa v. Germany, no. 5709/09, 17 April 2014, §§ 43-50).”

49. The Court notes at the outset that the Supreme Court in fact accepted that by using the term “rapist” about a named person, that person was being accused of committing rape. However, the Supreme Court considered that the statement in question was to be classified as a value judgment when viewed in “context” (see paragraph 16 above). The question before the Court is therefore whether, viewed as a whole and in context, as is required by the case-law of the Court (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV), the findings of the Supreme Court were within its margin of factual appreciation that must be afforded to the national courts as to the classification of the statement (see Arnarson v Iceland, no. 58781/13, § 45, 13 June 2017).

50. At the outset, the Court notes that the term “rapist” is objective and factual in nature. It directly refers to a person who has committed the act of rape, which is criminalised under the Icelandic Penal Code (see paragraph 18 above). The veracity of an allegation of rape can therefore be proven. It follows that, viewed on its face, the statement “Fuck you rapist bastard” included a statement of fact as it clearly assigns the status of “rapist” to the person who is the subject of the statement. Although the Court does not exclude the possibility that an objective statement of fact, such as the one impugned in the present case, can, contextually, be classified as a value judgment the contextual elements justifying such a conclusion must be convincing in the light of the objective and factual nature of the term “rapist” taken at face value. (see, a contrario, for example, Karman v Russia, no. 29372/02, 14 December 2006, § 41, and Brosa, cited above, §§ 43-50).”

51. In this regard, the Court considers it crucial that when describing the context of the statement in question, the Supreme Court relied primarily on the applicant’s participation in a “ruthless debate” which he had “instigated”. The Supreme Court failed to take adequate account of the important chronological link between the publication of the statement on 22 November 2012 and the discontinuance of the criminal cases of alleged rape against the applicant, the second only a week before, on 15 November 2012, both cases being the subject matter of the magazine interview on 22 November 2012 which prompted X to publish his statement. In other words, although the Court has no reason to call into question the Supreme Court’s findings that the statement was a part of a “ruthless public debate” prompted by the applicant’s behaviour and public persona, the factual context in which the statement was made, and its allegation that the applicant was a “rapist”, was the criminal proceedings in which the applicant had been accused of the very same criminal act to which the statement referred, proceedings which had been discontinued by the public prosecutor for lack of evidence (see paragraph 6 above).

52. In light of the above, and in particular the objective and factual nature of the term “rapist“, when viewed on its face, the Court finds that the contextual assessment made by the Supreme Court did not adequately take account of relevant and sufficient elements so as to justify the conclusion that the statement constituted a value judgment. However, even assuming that the Court were to accept the Supreme Court’s classification of the statement “rapist” as a value judgment, the Court recalls that under its settled case-law (see paragraph 40 above), even where a statement amounts to a value judgment there must exist a sufficient factual basis to support it, failing which it will be excessive. In the light of the discontinuance of the criminal proceedings against the applicant just prior to the publication of the applicant’s newspaper interview, the Supreme Court failed to explain sufficiently the factual basis that could have justified assessing the use of the term “rapist” as a value judgment, the Supreme Court merely referring, as previously mentioned, to the applicant’s participation in a “ruthless public debate” which he had “instigated” when he gave the interview in question. In short, Article 8 of the Convention must be interpreted to mean that persons, even disputed public persons that have instigated a heated debate due to their behaviour and public comments, do not have to tolerate being publicly accused of violent criminal acts without such statements being supported by facts. The Court therefore finds 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 for Article 8 to come into play (see, inter alia, A v. Norway, cited above, § 64).

53. In the light of the above-mentioned considerations the Court finds that the domestic courts failed to strike a fair balance between the applicant’s right to respect for private life under Article 8 of the Convention and X’s right to freedom of expression under Article 10 of the Convention. The Court therefore finds that there has been a violation of Article 8 of the Convention.