Facts vs. Value Judgements and the Norwegian Legal Practice
By Bjørn Cato Funnemark
The paper has been submitted to the Human Rights House Foundation as a contribution to a comparative analysis of the freedom of expression issues
Oslo, April 2009
Bjørn Cato Funnemark
Chairman of the Supervisory Board of
the media company Vysokyi Zamok, Lviv, Ukraine
Former Executive Director of the Norwegian Helsinki Committee
Table of Contents
1. Introduction and background: Freedom of speech in Scandinavia 3
2. The Bergen police brutality case 5
3. Strasbourg guide – lining new Norwegian practice 6
4. Newspaper vs. beauty surgeon 7
5. Newspaper vs. seal hunters 8
6. The man who allegedly had to live there 9
7. Newspaper vs. tycoon 11
8. Defamation in the Norwegian Criminal Code 12
9. Defamation out of the Criminal Code 13
1. Introduction and background: Freedom of speech in Scandinavia
Scandinavia is generally seen as a part of the world where freedom of speech as well as other civil liberties, are better respected than elsewhere in the world. Freedom House[1] which every year presents ranking lists of the Freedom of the Press[2] all over the world, rated in 2008 all the five Nordic countries among the top five on that list, that is, as the least repressive countries in this respect. Poland ranks as number 51 on the same list, confirming that there is still room for improvement.
This does on the other side not mean that there are no problems in Norway or the other Nordic countries left to be solved. The Nordic countries have most probably benefitted from their geopolitical position. There seems to be an obvious connection between the comparatively liberal and democratic development in Scandinavia and the absence of war over the last centuries, the only exception being the occupation of Norway and Denmark during the Second World War (and at least the occupation of Denmark was a fairly soft one considering the overall brutality of the Nazies). Poland’s geopolitical position has been a much bigger challenge. It is also a more populous country and a relatively new democracy.
Sweden introduced a very liberal legislation as early as in the beginning of the 18th century, during its “Age of liberty” when Sweden ceased to be a European super power, after it was defeated by Russia in the Great Nordic War. The real power was transferred from the monarch to a four-estate Swedish parliament, the Riksdag, which exceptionally for the time also included the peasants. The Riksdag legislated without inhibition which in 1766 fortunately also resulted in a very unique (again for the time) liberty of press (print) – law (”tryckfrihetsförordningen”) which also was included in the Swedish constitution. Although the other Scandinavian countries like Norway (especially after 1814) also have enjoyed their exceptional liberal periods, Swedens is probably overall the Scandinavian frontrunner in this field.
Norwegian legal practice, which further on will be the main focus of this paper, was after the Second World War dominated by the teachings of professors Johs Andenæs and Anders Bratholm which, according to the opinions of the Norwegian Press Associations[3], restricted the freedom of speech too much. Norway lost through the too severe practice several cases in the European Court of Human Rights in Strasbourg. The number of defamation cases in the Norwegian courts increased explosively during the 1980s and the 1990s. While Andenæs and Bratholm primarily differentiated between accusations and mockery, the basic distinction in the European Court of Human Rights in Strasbourg at least after the famous Lingens verdict in the Lingens case in 1986, was drawn between facts and value judgements (opinions).
The editor of the Vienna magazine Profil, Peter Michael Lingens, was fined according to the Austrian law for in a series of articles having printed very negative characteristics of the Austrian chancellor Bruno Kreisky, portraying him as “immoral” and “undignified” and naming him “the basest opportunist”. Lingens accused chancellor Kreisky of “reconciliation with the Nazis”[4]. The articles were printed after the Austrian general elections in 1975. Lingens was then tried by the Vienna regional court in 1979 and found guilty of defamation of Kreisky. The case was brought to the European Court of Human Rights, which in 1986 concluded that it was necessary to draw a distinction between facts and value judgements. The European Court also emphasized that although politicians are entitled to protection against defamation, they must as public persons also endure sharper judgements than other people.
2. The Bergen police brutality case
The Bergen police brutality case which was tried before the court in Strasbourg, contributed substantially to a change in the Norwegian practice in defamation cases in a liberal direction. The professor in criminal law Anders Bratholm wrote a book and various other publications about a famous police brutality investigation concerning the police in Bergen, the second largest city in Norway. Bratholm’s work was a follow up to an investigation and a book by researchers from the University of Bergen. In a reply to professor Bratholm’s book, the chairman of the Norwegian police officers association (Norsk Politiforbund) Arnold Nilsen and the chairman of the Police Union in Bergen Jan Gerhard Johnsen described professor Bratholm’s book as “defamation” and “deliberate lies”, claiming that the professor’s intention must have been to “weaken the confidence in the police”.
The Norwegian Supreme Court in the intention to differentiate between facts and opinions, concluded that Professor Bratholm had been a victim of defamation, claiming that accusations like “deliberate lies” or “intention to harm the police”, are fact-based accusations. Having lost this case at the Norwegian Supreme Court, Arnold Nilsen and Jan Gerhard Johnsen brought it to the European Court of Human Rights in Strasbourg on behalf of the Norwegian Police Trade Union (Norsk Politiforbund). In a unanimous verdict the Strasbourg court concluded on 9 September 1998 that the Norwegian verdict violated Article 10 of the European Convention on Human Rights. The verdict stated that “the applicants (that is the police trade unionists- author’s remark) provided an objectively understandable explanation for their choice of words in the impugned statements which, moreover, were scarcely susceptible of proof”. This may be interpreted in such a way”, that the expressions of the Norwegian trade unionists in Strasbourg were understood as value judgements more than as facts and thereby contradicting the verdict and interpretation of the Norwegian Supreme Court. This at least is the interpretation made by the Norwegian Commission on the freedom of speech in their report from 1999[5].
The Norwegian Governmental Commission on Freedom of Speech, appointed by
Royal Decree in August 1996 and chaired by Professor Francis Sejersted proposed amendments to the paragraph 100 in the Norwegian Constitution in order to strengthen the freedom of speech in Norway. This commission stated regarding the distinction between facts and opinions (value judgements) that it thought it necessary to introduce a national defamation law, a distinction between statements regarding facts and statements which must be seen as value statements.[6]
3. Strasbourg guide – lining new Norwegian practice
As a consequence of this development the year 1999 brought a substantial change in the Norwegian legal practice regarding freedom of speech and defamation charges. Paragraph 100 in the Norwegian Constitution was amended and a new legislation regarding defamation was gradually introduced. Most important of all was the decision that from then on the European Convention of Human Rights preceded national legislation when conflict or doubt occurred. In accordance with the verdicts of the EC of HR, a sharper distinction between facts that may be proven right or wrong and value judgements was drawn in favour of a more liberal interpretation of what may be considered value judgements or expressions of opinions.
The European Convention of Human Rights was originally signed in Rome in 1950 and entered into force three years later. It has later been amended. Most important in our case is the Article 10 of the Convention concerning freedom of expression:
”Art.10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Returning to the Norwegian legal practice, it must be underlined that the case of the police trade unionists Nilsen and Johnsen versus professor Bratholm is not the only defamation case which Norway lost in Strasbourg in recent years. The necessity of drawing a clear distinction between facts versus value judgments has directly or indirectly been highlighted in all the following cases which all ended up in Strasbourg. All of these cases involved newspapers and they subsequently caught a lot of media attention.
4. Newspaper vs. beauty surgeon
Already in the following year Norway lost an important case in Strasbourg against the regional newspaper Bergens Tidende, the biggest defamation case ever involving a Norwegian media company. The dispute between the beauty surgeon Helge Røv and Bergens Tidende ended up in the European Court of Human Rights in Strasbourg. After a verdict in favour of the beauty surgeon in the Norwegian Supreme Court in 1994, the newspaper brought the case to Strasbourg.
The whole story started in the 1980s when Bergens Tidende wrote a story about the achievements of the beauty surgeon Helge Røv very much in his favour. This resulted in severe criticism from some of his former patients who in a series of articles (even displaying their breasts for the press), claimed that the surgeon had disfigured them. Mr. Røv hired one of Norway’s most famous star solicitors Cato Schiøtz who claimed that there was no truth at all in the complaints of the female victims. The Norwegian Supreme Court concluded that the women were unable to prove their case with sufficient evidence.[7]
On top of that the newspaper had to pay the beauty surgeon the substantial amount of 3.7 million Norwegian kroner. In the year 2000 the Strasbourg court reverted this sentence and Norway had to pay the newspaper 6.5 million kroner, a sum of money which at that time exceeded 1 million US dollars. Strasbourg concluded that the newspaper was in its full right to quote the women’s personal experiences. We may claim that Strasbourg viewed the women’s claims more as value statements than hard facts, while the Norwegian Supreme Court in accordance with the previous Norwegian practice viewed them strictly as facts that needed to be proven sufficiently before a court.
The editor-in-chief of the Bergens Tidende Einar Hålien claimed in a television interview with the Norwegian broadcasting company NRK after the Strasbourg verdict was announced that this victory was so important because it concerned a core issue in critical journalism and confirmed “that everybody has the right to tell their story.”[8]
5. Newspaper vs. seal hunters
The case of the seal hunting inspector Odd F Lindberg against the newspaper Tromsø is a similar case in the sense that it took place approximately at the same time and it also concerned a case between a newspaper and persons of a certain profession. It is again a case where Norway with its overly restrictive practice lost a case against the European Court of Human Rights. It concerns the question of facts versus opinions much more indirectly.
The seal hunting inspector Odd F Lindberg, at that time a well-known opponent of the Norwegian seal hunting worked as a freelance journalist on the seal hunting vessel Harmoni. He made a documentary “Seal Mourning” for the state owned Norwegian Television channel NRK. He also submitted a report to the Norwegian Ministry for Fisheries and Coastal affairs in 1988. Lindberg claimed in this report that the seals were skinned alive and generally complained about the pain the seal hunters afflicted upon the seals. When this report was published by the newspaper Tromsø, the seal hunters on the vessel Harmoni took this case to the Norwegian court claiming that the report was not supposed to be made public in order to protect their privacy. They presented this case as a defamation case. After at least a partial victory for the seal hunters in the Nord–Troms district court (the Norwegian Supreme Court refused the case), the newspaper Tromsø claimed that this verdict violated the Article 10 of the European Convention of Human Rights and brought the case to Strasbourg. In May 1999 Strasbourg confirmed that the Norwegian media had the right to make this information public even if that meant a burden to certain individuals.
These verdicts in Strasbourg proved to be important guidelines for further Norwegian practice in defamation cases, especially since from 1999 the European Convention on Human Rights even precedes the domestic Norwegian law.