Protecting the privacy of public figures from heavy accusations posted at Instagram
JUDGMENT
Egill Einarsson v. Iceland 7.11.2017 (no. 24703/15)
SUMMARY
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.
The European Court of Human Rights found that the domestic courts had not taken sufficient
account of the fact that the remarks, notably the word “rapist”, had been posted just a week after
prosecutors had discontinued sexual offence proceedings against Mr Einarsson. The courts had also
not provided a sufficient explanation in the context of the case for their justification for finding that
the word “rapist” could be used as a value judgment.
Overall, the domestic courts had not struck a fair balance between Mr Einarsson’s right to respect
for his private life under Article 8 of the Convention and the right to freedom of expression under
Article 10 of the person who had posted the remark
PROVISION
Article 8
PRINCIPAL FACTS
The applicant is an Icelandic national who was born in 1980. At the time of the events he was a wellknown
writer of blogs, articles and books, who had also appeared on television. In 2011, he was accused of rape, and in early 2012 of having committed another sexual offence a few years earlier.
Prosecutors later dismissed the cases for lack of evidence, the second decision being delivered on 15
November 2012. Seven days later, Mr Einarsson gave an interview to a local magazine, which
included his picture on the front page and his comments on the rape accusation. He stated several
times that the accusations were false.
On the same day as the interview, a private person, X, posted an altered version of the magazine
photograph of Mr Einarsson on the Internet picture-sharing service Instagram, accompanied by the
caption, “Fuck you rapist bastard”. X had changed the picture by drawing an upside-down cross on
Mr Einarsson’s forehead and writing “loser” across his face.
Mr Einarsson’s lawyer wrote to X to ask him to withdraw the statement, apologise in the media and
pay damages. X’s lawyer replied in an email that X had not distributed the picture online as it had
been posted to a closed group on Instagram and had been distributed by others. The email also said
that X was sorry and that the picture had been shared without his consent or knowledge Mr Einarsson brought defamation proceedings before the Reykjavik District Court in December 2012, seeking X’s punishment under the Penal Code for altering the picture and publishing it on Instagram with the caption. He also requested that the words in the caption be declared null and void and that
X be orderd to pay damages.
The District Court dismissed Mr Einarsson’s claim in November 2013. The judgment was upheld on
appeal by the Supreme Court in November 2014. The Supreme Court found that X’s remarks were
not a statement of fact, but a value judgment. The court considered that the words had to be seen in
the context of a public debate instigated earlier by Mr Einarsson.
THE DECISION OF THE COURT
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.
Just satisfaction (Article 41)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the
non-pecuniary damage sustained by Mr Einarsson.
Separate opinions
Judges Lemmens and Mourou-Vikström each expressed a dissenting opinion. These separate
opinions are annexed to the judgment(echrcaselaw.com editing).
