KKO:2022:1 – At issue, whether a journalist committed defamation by posting on Facebook

Diary number: R2020/812
Issued on: 11 January 2022
ECLI:FI:KKO:2022:1

Background and issue before the Supreme Court

A, a freelance journalist and author, had written a Facebook post indicating that B was intending to come and disturb a public appearance by A and that B had a political motive to do so. In the post, A had used derogatory terms about B, calling him a Nazi and a racist, and stated that her post was about Finnish Nazi clowns.

The public prosecutor brought a charge against A for defamation. According to the charge, A had defamed B by using derogatory terms about him. The derogatory terms could not be deemed legitimate criticism about B’s political activity, nor could they be deemed as something that does not clearly exceed the limits of propriety.

The District Court held that A had used derogatory terms about B and that her purpose had been to defame B. The District Court convicted A of defamation and sentenced her to a fine.

The Court of Appeal upheld the District Court’s judgment. The Court of Appeal agreed with the District Court that the posting had defamed B by being conducive to causing harm or discomfort to B or to raising contempt against him. According to the Court of Appeal, the language that B had used about other persons was not an excuse to defame him.

The issue before the Supreme Court was whether A had committed defamation. The Supreme Court had to determine whether the expressions used were derogatory and, if they were, whether they were covered by the criterion that the expression does not clearly exceed the limits of propriety.

Applicable law

Defamation is criminalised in chapter 24, section 9, of the Criminal Code of Finland. According to paragraph (1) of that section, a person who 1. spreads false information or a false insinuation of another person so that the act is conducive to causing damage or suffering to that person, or subjecting that person to contempt, or 2. otherwise disparages another person shall be convicted of defamation and sentenced to a fine. According to paragraph (3) of the same section, criticism that is directed at a person’s activities in politics, business, public office, public position, science, art or in comparable public activity and that does not obviously exceed the limits of propriety does not constitute defamation. Moreover, according to paragraph (4) of the same section, the presentation of an expression in the consideration of a matter of general importance shall also not be considered defamation if its presentation, taking into consideration its contents, the rights of others and the other circumstances, does not clearly exceed the limits of propriety.

The criminalisation of defamation is a measure intended to protect personal honour as enshrined in section 10 of the Constitution of Finland and Article 17 of the International Covenant on Civil and Political Rights. The protection can also be based on Article 8 of the European Human Rights Convention concerning privacy. That being said, when interpreting the criminal provision, due note should be taken of the protection of the freedom of expression as enshrined in section 12 of the Constitution, Article 19 of the ICCPR and Article 10 of the ECHR. The core content of this protection is the right to express, publish and receive information, opinions, and other communications without prior control.

Reasons and conclusions of the Supreme Court

The Supreme Court noted that when a court is considering the criteria for the application of a criminal provision, it must weigh the right to privacy and the freedom of expression and strike an appropriate balance between the two. In such weighing, note must be taken e.g., of how closely the published information concerns the core of the privacy rights of the individual, and how essential the restriction of the freedom of expression can be seen for this reason.

Citing the case-law of the European Court of Human Rights, the Supreme Court held that restrictions of the freedom of expression should be subject to special reservation in the context of debate that raises a broader public interest. Moreover, the Supreme Court noted that the limits of criticism directed at politicians and other public figures are broad, because they have knowingly subjected themselves to scrutiny of word and deed, and because they can be expected have a high tolerance for publicity. In addition, the European Court of Human Rights has held that the conduct of the person concerned before the material has been published should be taken into account. Note should also be taken of the manner and context of the publication and the medium used. And finally, the truthfulness of the information, the manner and seriousness of the invasion of privacy and the consequences of the publication must also be considered. That said, freedom of expression also entails a freedom to a manner of exaggeration and provocation.

According to the Supreme Court, the expressions used by A were, by their nature, expressions of values, where there fundamentally is no point in evaluating their truthfulness. Even though the expressions concerned values, A’s conduct can be punishable as defamation, if the expressions are unduly derogatory.

The Supreme Court held that expressions indicating that another person is a racist, a Nazi and a Nazi clown were disparaging and, in this way, met the penal criteria referred to in chapter 24, section 9(1)(2), of the Criminal Code. Accordingly, A was held to have used expressions disparaging B.

Written evidence had been presented indicating that already before the publication of the Facebook posting in question, B had e.g., in his blog publicly expressed views that were defamatory and hostile against certain groups. It was also held proven that B’s intent had been to appear at A’s book launch event with another person, to put questions to A and to video record the encounter. At the time of publication, B had been standing as a candidate in an election, participated in public events, some of which he had organised or hosted, and been active on social media. Thus, B had been active in politics and other public activity at the material time.

According to the Supreme Court, the posting published by A had involved criticism against B’s political activity and other comparable public activity. Therefore, the Supreme Court held that the restrictive provision in chapter 24, section 9(3), of the Criminal Code was applicable.

Thereafter the Supreme Court assessed whether the expressions used by A obviously exceeded the limits of propriety. In this respect, the Supreme Court noted that B had himself publicly expressed provocative views that were defamatory and hostile against certain groups. The Supreme Court held that owing to his own conduct B could be expected also to tolerate harsher criticism himself.

A’s posting had been published on the same day when she was supposed to appear at her book’s launch event. The post was directed at her Facebook followers. When assessed as a whole, the expressions used in the post were to be deemed to have been aimed primarily at the expected, politically motivated interference by B, and they were informed by knowledge of a pattern of aggravation against journalists. The focus of the post had been on B’s conduct and not on his personal characteristics, even though it had contained instances of inappropriate expressions that were defamatory in nature.

The Supreme Court held that the post did not exceed the limits of propriety when assessed as a whole. In consequence, the Supreme Court rejected the charge and overturned A’s defamation conviction.