CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 34409/97                       by Helen WELLTON                       against Sweden           The European Commission of Human Rights (Second Chamber) sitting in private on 14 January 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 26 September 1996 by Helen WELLTON against Sweden and registered on 9 January 1997 under file No. 34409/97;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Swedish national born in 1961. Before the Commission she is represented by Mr Dan-Louis Schneider, a lawyer practising in Stockholm.         The facts of the case, as submitted by the applicant, may be summarised as follows.   a.     The particular circumstances of the case         In 1990 the applicant and her husband, C.W.P., founded a company specialised in the retail of portable computers. From the outset, the company's public relations policy included the launching of repeated and extensive advertising campaigns. The applicant, who had previously worked as a model, featured in all of the company's advertisements.         On 14 March 1994 there appeared in the Swedish daily Aftonbladet an article criticising the conditions under which the company's staff had to work and also alleging breaches of labour law. The article, accompanied by photographs of the applicant, included the following captions on the front page and page 9 of the paper.   (Translation)         The front page:         "Computer baroness breaks the law."         Page 9:         "'You will be sacked if you enter the ware-house.' Computer       baroness rules her company with an iron hand."         The applicant brought a private prosecution for aggravated libel (grovt förtal), and in the alternative for libel (förtal), against the editor-in-chief of the newspaper in the District Court (tingsrätten) of Stockholm. In so doing, she invoked Chapter 7, Section 4, subsection 14 of the Freedom of the Press Act (tryckfrihetsförordningen, a law forming part of the Swedish Constitution) and Chapter 5, Sections 1 and 2 of the Penal Code (brottsbalken). In the same proceedings she sued both the editor-in-chief and the newspaper for damages. She contended that the front-page caption - "computer baroness breaks the law" - was calculated to cast doubt on her honour and to expose her to contempt. Considering the wide distribution of the newspaper she considered the libel to be of an aggravated character.         The District Court, sitting with three judges and a jury of nine, held a hearing in the case. The editor-in-chief denied the charges. The court also heard the applicant and several witnesses, among them the journalist who had written the article and the applicant's husband. At the end of the hearing two questions were put to the jury by the court, namely whether the front-page caption constituted aggravated libel or, if the jury should give a negative answer to that question, whether it constituted libel.         By judgment of 2 May 1995, the court dismissed the charges made by the applicant and her claims for damages. The court noted at the outset that the jury had replied in the negative to the first question put to it concerning the alleged unlawfulness of the impugned caption and in the affirmative to the second question, thus finding the caption to constitute libel. However, acting in accordance with the provisions of the Freedom of the Press Act, the court went on to examine the case independently. In so doing, the court found the caption to be libellous per se but considered that there had existed satisfactory reasons for believing that the information was correct. As regards the question whether it had been permissible to disseminate the information, the court stated the following:   (Translation)         "It has transpired that both [C.W.P.] and [the applicant]       herself have consciously and also successfully pursued the       policy that [the applicant] should be included in the       company's public relations activities to such an extent and       in such a way that [the applicant] and [the company] could       be identified with each other. It is widely known that this       strategy has been successful. [The applicant] is very       closely connected with [the company] and is nowadays, as       indeed intended, considered to be a symbol for its       activities. The District Court therefore finds ... that it       was permissible for [the newspaper], drawing on the ideas       of the general public, to personify [the company] and, as       intended by the repeated public relations activities, to       refer to [the applicant] as a "computer baroness" when       criticising the company's personnel policy and its relation       to labour law."         The District Court concluded that if a natural person - by virtue of his or her public appearances on behalf of a company - could be said to represent the company, criticism against the company and its activities could not be regarded as an attack on that person, not even if emphasis were placed on that person as a representative of the company. - Furthermore, in view of the conclusions reached on the merits, the court ordered the applicant to pay 32,475 Swedish crowns in costs.         The applicant appealed to the Svea Court of Appeal (Svea hovrätt), which held a hearing in the case. Again, the applicant and the editor-in-chief were heard. All witnesses were re-examined.         By judgment of 7 February 1996, the Court of Appeal upheld the whole of the District Court's judgment. Subscribing essentially to the reasons given by the lower court, the appellate court found that the impugned caption, although libellous in itself, could not be considered unlawful in the circumstances of the case. In particular, the court noted that it was a societal interest that abuses of labour law be revealed. For this reason, so the court stated, it had been permissible not only to report on the alleged abuses but also - taking into account the extensive advertising campaigns - to connect them with the applicant. - The applicant was ordered to pay another 58,180 Swedish crowns in costs.         Leave to appeal against the Court of Appeal's judgment was refused by the Supreme Court (Högsta domstolen) on 1 April 1996.     b.     Relevant domestic law         Chapter 7, Section 4, subsection 14 of the Freedom of the Press Act provides the following:   (Translation)         "Taking into account the purpose of a system of general       freedom of the press, as stated in Chapter 1, the following       offences shall be considered as offences under the Freedom       of the Press Act [tryckfrihetsbrott], if they are committed       by means of the printed word and are punishable under the       law:         ...         14. libel, by which someone accuses another person of being       a criminal or of leading a reprehensible life or otherwise       disseminates information intended to expose this person to       other people's contempt, ... but not if, in the       circumstances of the case, it was permissible to       disseminate the information concerned and he is able to       establish that the information was true or that it was       based on satisfactory reasons. ..."         Libel is a punishable offence under Chapter 5, Section 1 of the Penal Code.         Chapter 12 of the Freedom of the Press Act contains special provisions governing judicial proceedings instituted to establish criminal liability for prohibited statements in print. The District Court sits with three judges and, in proceedings brought under the Act, also with a jury of nine members to examine whether a criminal offence has been committed, unless the parties on both sides declare their willingness to have the issue determined by the court without a jury (Section 2). In any event, matters such as evidence, sentencing, damages and legal costs are dealt with by the judges alone. If a jury has given a negative answer to the question whether an offence has been committed, the defendant must be acquitted. If the reply is in the affirmative the issue is to be examined also by the judges. Should they disagree with the jury, they may acquit the defendant or apply a penal provision imposing a less severe penalty than that applied by the jury (ibid.). A judgment by the District Court may be appealed against to the Court of Appeal, whose jurisdiction, like that of the District Court, is limited by the terms of the jury's verdict (ibid.).     COMPLAINTS   1.     Under Article 6 of the Convention the applicant complains that she was accused of being a criminal and that she was denied a fair hearing for the purpose of protecting her reputation.   2.     Invoking Article 8 of the Convention, the applicant further complains that, by acquitting the editor-in-chief, the Swedish courts violated her right to respect for private life.         The applicant also alleges a breach of Article 10 of the Convention in that the Swedish legislation, allegedly lacking any effective restrictions to the freedom of expression as regards the printed word, provides insufficient protection against treatment of the kind to which she has been subjected.   3.     Finally, the applicant contends that the courts failed to make a distinction between her - as a model appearing in the company's advertisements - and the company itself and that the courts were therefore more concerned with the company's activities than the alleged unlawfulness of the allegations against her. For this reason, so she claims, she has been discriminated against as compared with contractors without such affiliations. In this respect she invokes Article 14 of the Convention.     THE LAW   1.     Under Article 6 (Art. 6) of the Convention the applicant complains that she was accused of being a criminal and that she was denied a fair hearing for the purpose of protecting her reputation.         The Commission has considered this complaint under paragraph 1 of Article 6 (Art. 6-1), which, so far as relevant, reads as follows:         "In the determination of his civil rights and obligations       ..., everyone is entitled to a fair and public hearing ...       by [a] ... tribunal ..."         The Commission first finds that the proceedings in question related to the applicant's "civil rights" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention, which is therefore applicable to the present complaint (see, e.g., Eur. Court H.R., Helmers v. Sweden judgment of 29 October 1991, Series A no. 212-A, p. 14, para. 29).         The Commission has not, however, found any substantiated allegations in the applicant's submissions which could lead it to conclude that the proceedings were unfair and that the District Court and the Court of Appeal reached their judgments unfairly. There is thus no appearance of a violation of Article 6 (Art. 6) of the Convention.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Invoking Article 8 (Art. 8) of the Convention, the applicant further complains that, by acquitting the editor-in-chief, the Swedish courts violated her right to respect for private life.         The applicant also alleges a breach of Article 10 (Art. 10) of the Convention in that the Swedish legislation, allegedly lacking any effective restrictions to the freedom of expression as regards the printed word, provides insufficient protection against treatment of the kind to which she has been subjected.         The Commission observes at the outset that the objective of Article 10 (Art. 10) is to protect the freedom of expression and that -   consequently - this provision cannot be invoked by the applicant in the present case. Finding, however, that the complaint lodged under Article 10 (Art. 10) essentially pertains to the right to respect for private life, the Commission will examine also that complaint under Article 8 (Art. 8), which provides the following:         "1. Everyone has the right to respect for his private and       family life, his home and his correspondence.         2. There shall be no interference by a public authority       with the exercise of this right except such as is in       accordance with the law and is necessary in a democratic       society in the interests of national security, public       safety or the economic well-being of the country, for the       prevention of disorder or crime, for the protection of       health or morals, or for the protection of the rights and       freedoms of others."         The Commission recalls that, in the instant case, the Swedish courts were called upon to strike a balance between two opposing interests: the right to respect for private life and the right to freedom of expression. In so doing, both the District Court and the Court of Appeal found that the impugned caption was libellous in itself but that, in the circumstances of the case, it had been permissible to disseminate the information and that the information had been based on satisfactory reasons. In particular, the Court of Appeal held that abuses of labour law was a subject of considerable importance in society and that - considering the extensive advertising campaigns - it had been permissible to connect these abuses with the applicant. There is nothing to show that the courts acted arbitrarily when thus evaluating the facts of the case. Nor are there any elements indicating that that they failed to strike a fair balance between the individual interests of the applicant and the general interests of the community. The Commission therefore cannot find that the judgments as such disclose any lack of respect for the applicant's private life.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. 3.     Finally, the applicant contends that the courts failed to make a distinction between her - as a model appearing in the company's advertisements - and the company itself and that the courts were therefore more concerned with the company's activities than the alleged unlawfulness of the allegations against her. For this reason, so she claims, she has been discriminated against as compared with contractors without such affiliations. In this respect, she invokes Article 14 (Art. 14) of the Convention, which reads as follows:         "The enjoyment of the rights and freedoms set forth in this       Convention shall be secured without discrimination on any       ground such as sex, race, colour, language, religion,       political or other opinion, national or social origin,       association with a national minority, property, birth or       other status."         The Commission, having examined the present complaint under Article 14 in conjunction with Article 6 para. 1 (Art. 14+6-1) of the Convention, finds that the applicant's submissions fail to substantiate this complaint.         It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.       For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber