Jonina Ben
A distinction can be made from ‘expression’ within Art. 10 and ‘correspondence’ within Art. 8 on the grounds of the latter being a direct communication to another.[1]
Interference by another person with the right to correspondence can occur in various ways, by leakage, publishing without authorization, censorship by a carrier of the communication, theft, rules in an employees workplace and more. An area of much discussion is the interference of authorities of correspondence of people in order to solve and investigate crimes, here consideration will be limited to the State’s protection of people’s correspondence from other individuals. The State has an obligation to prevent interference and abuse of people’s correspondence, and this can be done by means of safeguarding communication, and setting up an “adequate and effective guarantee against abuse”[2]. Indeed States usually have i.e. in their criminal codes and telecommunication legislation various means to safeguard people’s communication from unwarranted interference.
In a judgment from the author’s home country Iceland in June 2006, the Supreme Court had to decide on an injunction case against a major newspaper in Iceland, which had received a number of email correspondences, allegedly stolen from the email-inbox of a Ms B, and published extracts from some of them. The emails had gone to and from Ms B and the editor of the most influential newspaper in the country, a very well known lawyer and a businessman, many of them regarding possible criminal charges to be put against Baugur Group, one of the largest companies in Iceland, by said businessman. Ms B also demanded punishment under the Icelandic penal code for publishing private matters without sufficient justifications. In its conclusion the court said (in the author’s translation):
“When deciding [whether there were sufficient reasons to justify the publications of the correspondences, which e.g. contained personal matters regarding Ms B] it must be kept in mind that when the letters were published [on 24-28 September 2005], issues regarding charges for alleged criminal conduct on behalf of the representatives of Baugur had been prominent in public debate in the country for a while and been a matter of great disputes, inter alia because of a police search in the company’s headquarters in August 2002 and a criminal charge against some of it’s representatives in July 2005. The writings of the paper contained material which was in the public interest and regarded a case which had been a subject of great disputes in society. Although financial matters of [Ms. B] had also been published in the paper’s deliberation, they were so intertwined with the news coverage in general that a clear distinction could not have been made. It is agreeable with [the newspaper] that the infringement against Ms B’s personal life was not more than was necessary in a public discussion on an issue that was in the public interest.”[3]
Here the Supreme Court found that because of ongoing debate in society, the owner of the emails in question did not have the same right to respect of her private matters as she else would have.
Similarly, although other matters also came into count, in the Peugot-case the Court stated that while a journalist “cannot, in principle, be released from their duty to obey the ordinary criminal law”, in part since the financial information he published was seen as contributing to a general debate “that interested the public”, convicting him for his writing was seen as a breach of his rights under Art. 10.[4]
[1] Correspondence usually means “written communication sent or received in the course of affair"s” and can include “letters, postcards, memoranda, notes, electronic mail, facsimiles, telegrams, or cables” - osulibrary.oregonstate.edu/archives/handbook/definitions.
[2] Klass and others v. Germany, Judgement of 6 Semptember 1978, 2 EHHR 214, para 50.
[3] Jónína Benediktsdóttir v. 365-prentmiðlar and Kári Jónasson, Judgement of 1 June 2006, no. 541/2005. The judgment is available at haestirettur.is/domar?nr=3949 and the translated text is from part IV. of the judgment.
[4] Fressoz and Roire v. France, Judgement of 21 January 1999, no. 29183, para
Haraldur Steinþórsson, November 2006.