CASE OF TØNSBERGS BLAD AS AND HAUKOM v. NORWAY

Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Costs and expenses award - domestic proceedings

The first applicant , PERSON A / S , is the publisher of the newspaper PERSON . The second applicant , PERSON , is its former editor - in - chief . She is a NORP national who was born in DATE and lives in the city of PERSON in southern GPE .

PERSON is a regional newspaper covering primarily the city of PERSON and CARDINAL surrounding municipalities in GPE . The newspaper is PERCENT owned by ORG It is published DATE a week . In DATE it had a DATE average circulation of CARDINAL , corresponding to a PERCENT household coverage within its primary circulation area .

In a meeting held on DATE ORG ( a politically appointed body attached to ORG ) of the GPE asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements . Under section CARDINAL(CARDINAL ) of LAW ( Lov om konsesjon ved erverv av fast eiendom ) of CARDINAL DATE ( no . CARDINAL ) , such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes . Provisions to this effect were further contained in Regulation ( forskrift ) no . CARDINAL of DATE , issued under the above - mentioned LAW in respect of the GPE , CARDINAL of the few municipalities in GPE which applied permanent residence requirements for DATE residences . The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the PERSON area , an attractive holiday destination for a large number of people residing notably in the GPE region . There was also a concern that too many residences were unoccupied during off - season periods .

On DATE the municipal administration drew up a list which was entitled “ Properties which should be verified in relation to the residence requirements . ( Not public ) ” . It was a tip - off list based on information from inhabitants and local politicians in the Municipality and was presented to ORG at a meeting open to the public held DATE . The list included the name of PERSON , who at the time was the Executive Vice - President , the Head of ORG and a member of ORG of ORG , CARDINAL of GPE 's largest industrial companies .

The property in question had been acquired in DATE and Mr PERSON 's wife held title to it ( a fact that was not deemed significant in the defamation proceedings summarised below ) . An DATE residence had been erected on the property in DATE and the PERSON family had used it as their main residence for DATE , when they had moved to GPE because of Mr PERSON 's professional situation . Before that , they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law .

Mr PERSON , a journalist , became aware of the process initiated by the GPE and received a copy of the above - mentioned list . He had a close network of contacts within GPE . From DATE he made a number of enquiries to the GPE on the subject . On DATE the journalist interviewed the director of ORG ( leder for plan- og bygningssaker ) , Mr PERSON .

On DATE the newspaper published as its main story an article written by PERSON , which gave rise to the defamation proceedings brought against the applicants by PERSON . On the front page there appeared an introduction to the article under the headline ( all quotations below are translations from NORP ) :

“ DATE be forced to sell ”

and the sub - heading

“ [ ORG ] and PERSON will have to explain themselves on permanent residence requirements ”

The introduction read :

“ Permanent residence requirements : In the worst - case scenario [ ORG ] may be forced to sell her property at Hvasser [ an island next to PERSON ] . The same applies to ORG director PERSON . According to the understanding of PERSON , their properties are on a list which the GPE will submit to the County Governor [ Fylkesmannen ] in the very near future . The list includes properties whose use is thought not to be in conformity with the permanent residence requirements .

Taking action : The GPE will now take a firm line towards house owners within GPE who do not comply with the permanent residence requirements . For a long time there has been a CARDINAL limit on concessions at PERSON . This means that DATE residences must be inhabited DATE . Those who breach this requirement may be forced to rent out or to sell their property . This is confirmed by the director of ORG , Mr PERSON . ”

The front page also contained photographs of PERSON ( a famous singer ) and of Mr PERSON .

The article continued inside the paper on page CARDINAL with the following headlines :

“ PERSON hunts for permanent residence sinners

[ ORG ] and PERSON may be forced to sell ”

and an introduction :

“ PERSON : Both singer [ PERSON ] and ORG director PERSON may be forced to sell their properties in PERSON . The reason is that , according to GPE , they do not comply with the permanent residence requirements applicable to their properties . ”

At the top of page CARDINAL the paper published photographs of PERSON and PERSON respective properties . Under the former photograph , to the left , there was a caption :

“ RESIDENCE REQUIREMENTS : PERSON owns this property in PERSON . The GPE considers that the residence requirements are not satisfied . ”

Between the CARDINAL above - mentioned photographs there was a small photo of Mr PERSON with this caption :

“ MUST PROVIDE AN EXPLANATION : - It must be due to a misunderstanding , says PERSON ”

The article stated :

“ The GPE is now in the process of tightening up the obligation to comply with the residence requirement in the municipality . A CARDINAL concession limit has long since been introduced . This means that DATE - round properties must be lived in DATE .

Confrontation

In the near future the technical services department of the GPE will approach GPE in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties . It is then up to GPE to confront the owners of these properties .

The director of ORG , Mr PERSON , does not wish to comment to PERSON as to which properties are on the list they are sending to the LOC Governor . But from what PERSON has been given to understand , the property of PERSON at ORG island is on the list . The same applies to PERSON 's property , which is at PERSON on PERSON .

Clearing up

' I can not comment on individual properties at the present time . First we must write to GPE . This will occur in the near future . '

' But will GPE now tighten up the obligation to comply with the residence requirement ? '

' Yes , indeed . This is an issue that has been discussed at both the administrative and the political levels for some time . Now we want to do something about it . We know that the residence requirements are not being complied with for several properties in the municipality . This is why we are now taking this initiative vis - à - vis the County Governor . Now we want to get this cleared up . '

Can be rented out

' What are the owners of these properties risking ? '

' To begin with , they will have to explain themselves to the County Governor . I would emphasise that it is not a requirement that the owners themselves live in the properties . It is enough for them to be rented out on a year - round basis . If this is not done , there may be a question of enforced sale , ' says the director of ORG PERSON to PERSON .

' Misunderstanding '

ORG owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to PERSON , in view of the fact that he has heard from neither the LOC nor the LOC Governor .

PERSON told PERSON that if his property on PERSON was on the GPE 's list of properties where the residence requirements are not being fulfilled , this had to be due to a misunderstanding . Beyond that he did not wish to comment . ”

Below , on the same page , PERSON published another article based on interviews with local politicians :

“ Residence requirements are a CARDINAL - edged sword

TJØME : DATE , who is the leader of the NORP on ORG , thinks that the time is ripe for a new and thorough political debate on the question of residence requirements .

PERSON

' The whole question of residence requirements is a CARDINAL - edged sword ' , she says .

The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto , but at the same time the party feels a need to have a broad political debate on the question . May - Sylvi Hansen , who in addition to being the leader of the NORP on ORG also sits on ORG , tells PERSON that at any rate she sees no reason for a tightening - up of the obligation to fulfil the residence requirements now .

' The residence requirements issue is under discussion in ORG , and the question is whether we should perhaps be a little more liberal in the time to come . But this is a CARDINAL - edged sword . On the one hand we do n't want to see year - round residences made into DATE homes , but on the other hand we have had considerable migration to PERSON in DATE the population is growing fast , ' says May - PERSON .

Not a problem any more

' In DATE the residence requirements were entirely necessary in this municipality . But in my opinion , after the big migration to the municipality began , empty houses in DATE are no longer a problem . We should therefore undertake a serious review of the whole issue of residence requirements and ask whether , when all 's said and done , it 's just an old bogeyman , ' says PERSON .

PERSON of ' The Tjøme List ' independents , who chairs ORG , does not agree with May - Sylvi Hansen that the occupation provisions should be liberalised .

' Must tighten up '

' I fully support the director of ORG view that it is necessary to tighten up the obligation that the residence requirements be fulfilled . With the mobility and flexibility that many now have in relation to their work , it should n't be a problem to live in PERSON even if you work somewhere else . We want people to live in the houses of PERSON , make no mistake about that , ' says PERSON .

' So you do n't support DATE - PERSON in her view that it is time for a general rethink of the residence requirements ? '

' The Tjøme List wants to retain the residence requirements , but I 'm willing to be a part of a discussion of the residence requirement in general . It could surely be useful , ' says PERSON . ”

On DATE GPE , CARDINAL of GPE 's largest DATE newspapers , published a brief item on the matter , stating , inter alia , that an ORG director and a famous singer might be forced to sell their properties , without specifying their names .

On DATE Mr PERSON addressed a letter to the GPE . Its Chief Executive Officer ( Rådmannen ) , Mr PERSON , replied by a letter of DATE , which stated inter alia :

“ The GPE is working on a survey of the status of the permanent residence requirements which have been implemented at PERSON under section CARDINAL(CARDINAL ) of LAW . Part of the reason why this work has started now are the enquiries from a number of local residents . These are neighbours to properties which are used , or should be used , for permanent residence but which , according to these enquiries , are not being used for this purpose . The list of properties that must be ' checked out ' has now become quite extensive . A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users . Consequently , these properties are being checked out , which is an ongoing process . ...

Your wife 's property has been reviewed in the same way , and I can confirm that the property , on legal grounds , has now been removed from the list . ”

On contacting the GPE on DATE , the journalist PERSON was informed that the Chief Executive Officer had replied to PERSON and that PERSON property had been removed from the list . PERSON received a copy of the above - mentioned letter of DATE .

On DATE PERSON published an article entitled

“ No restrictions on new cottages

Tjøme Chief Executive Officer points to major loopholes in the LAW ”

with the following introduction :

“ Escape : Singer [ ORG ] and ORG director PERSON escape the permanent residence requirements in GPE . They were included on the GPE 's list of properties that were subject to residence requirements , but have now been taken off . The reason is that they have built on their land themselves . Thus , the residence requirements do not apply .

Major loopholes : Chief Executive Officer PERSON ( picture ) at PERSON asserts that LAW is filled with holes the size of a barn door . He warns that the GPE will take up the issue with ORG . By exploiting loopholes in LAW , it is easy to get hold of an entirely new holiday home at GPE . All you need to do is to acquire a plot and build an DATE residence on it . Then no one can require permanent residence . ”

The article continued on page CARDINAL , with the following headlines and introduction :

“ Residence requirements do not apply to new houses

[ ORG ] and PERSON do not have to move to PERSON . ”

“ PERSON : Singer [ GPE ] and ORG director PERSON do not have to take up permanent residence in GPE . The reason : they have built on their properties themselves . Thus LAW does not apply . This means that they do not have to reside here . ”

In addition the coverage contained photographs of PERSON and Mrs. PERSON , with captions stating that they had “ escaped ” the residence requirements with regard to their properties . There were also photographs of the properties , with captions stating “ No residence requirement ” and adding that the properties , which had previously been on the GPE 's list of properties not complying with the residence requirements , had now been taken off the list .

The article reproduced an interview with the LOC 's Chief Executive Officer , PERSON , who was reported to have said that he had absolutely no wish to comment on individual cases , but confirmed that some had been cleared and removed from the list : “ We did this for legal reasons . ” He had further stated , inter alia , that it was unfortunate that LAW , which had loopholes the size of a barn door , did not apply to the purchase of undeveloped sites , but only to properties with buildings on . In practice , that meant that anyone building a year - round residence in GPE did not have to live in the house at all and could not be forced to move in . They could use it as a summer holiday cabin if they wished . It was not until the residence had been used for DATE - round home that the residence requirement would apply , but then only in the event of resale of the property . It could not be fair that residence requirements applied to some properties but not to others . To change this he would raise the matter with ORG .

On DATE PERSON published an article containing , inter alia , an interview with a former Minister of Agriculture , who stated that the loopholes in LAW that had been detected in PERSON articles were “ completely unreasonable ” and should be amended .

On DATE and DATE Mr PERSON conveyed to the newspaper orally and in writing his dissatisfaction with its DATE coverage , including the fact that his name had been mentioned . The newspaper responded , orally and in writing . By a letter of DATE , Mr PERSON 's lawyer demanded that PERSON publish a rectification and an apology . The newspaper replied that it had acted in accordance with the ethics of journalism and that , immediately after becoming aware that Mr PERSON 's property had been removed from the list , it had accordingly published an article on the front page and had offered him space for his own viewpoints , an offer it had maintained for a period thereafter . An interview with PERSON had not been published , as the newspaper had respected his decision that this was not desirable .

In a further article published on DATE , entitled “ PERSON clarifies ” , the paper stated that the properties belonging to PERSON and PERSON had been removed from the list in question , that the requirements at issue did not apply to their properties and that , accordingly , there had been no breach of the permanent residence requirements with regard to these properties .

On DATE Mr PERSON instituted private criminal proceedings ( privat straffesak ) before ORG ( byrett ) . He requested that both the introduction on the front page and the article on page CARDINAL be declared null and void under LAW , that PERSON and its editor - in - chief ( at the time of publication PERSON ) be punished under ORG and CARDINAL respectively of ORG and that the newspaper and its editor - in - chief be ordered to pay compensation for non - pecuniary damage under section CARDINAL of LAW DATE .

By a judgment of DATE ORG acquitted the applicants and ordered PERSON to pay MONEY ( ORG ) in respect of their costs . It found that a defamatory allegation had been made but , with reference to LAW , attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form .

On DATE Mr PERSON appealed against the judgment to ORG ( lagmannsrett ) .

By a judgment of CARDINAL DATE ORG upheld Mr PERSON 's claims in part .

As to the first issue , whether the impugned statements amounted to defamation for the purposes of LAW , ORG observed that it agreed with ORG that , when considering DATE article in isolation and as a whole , the allegations in question must be understood to mean that the Municipality , after having made a specific assessment of the relevant properties , had taken the stance that a breach of the residence requirements had occurred with regard to PERSON property , among others , and that his name had therefore been entered on a list which the LOC had decided to transmit to the LOC Governor for further processing . The report should therefore be perceived by the ordinary reader as an allegation that Mr PERSON had breached the obligation of residence .

As to the question whether this amounted to a defamatory accusation , ORG held that a breach of the residence requirements did not constitute a criminal offence but that , in a place like PERSON , many people would regard it as being immoral and an affront to the public interest . The High Court agreed with ORG that the accusations were not of the most defamatory kind but , not least in view of the strong personal angle of the report , ORG found that it was capable of damaging Mr PERSON 's good name and reputation . An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary .

ORG did not find that the applicants had adduced sufficient proof of the defamatory accusation under LAW to avoid liability for defamation under LAW . In this connection it observed :

“ It is correct that PERSON name was mentioned on a list drawn up in DATE by the administration of the GPE for its ORG . The heading of the list reads : ' Properties which should be verified in relation to the residence requirements ' . Further , it was noted that the list was not public . Had the NORP Blad limited itself to stating this , it would have made an accusation that was true . ... Mr PERSON 's name was put on the preliminary ' tip - off ' list , based on tip - offs from inhabitants , local politicians and others . ORG has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as ORG 's property was concerned , given the fact that it concerned an DATE residence which had been vacated and used as a holiday home . The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached , as has PERSON , the director of ORG . However , PERSON explained in the proceedings before ORG that , at that time , he had not conducted a further investigation of the property . His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence . He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it . PERSON also explained that , when he had told the journalist PERSON that a list would shortly be submitted to the LOC Governor , he was aware that the list would have to be examined first . According to ORG understanding of PERSON , there had been no further elaboration of the preliminary tip - off list since DATE . ... Since PERSON was well aware of the exception to the residence requirements for new buildings on open plots of land , he would have quickly discovered that no obligation of residence applied here . ... ORG further notes that to date none of the names that were on the provisional tip - off list from DATE have been transmitted to GPE because GPE believed that there was a breach of the residence requirements .

The allegations made by PERSON on DATE were therefore demonstrably inaccurate . ”

The High Court was divided as to the question whether the accusations were unlawful ( rettstridige ) . A majority of CARDINAL members found that that was the case , whereas a minority of CARDINAL members agreed with ORG .

NORP However , a qualified majority of minimum CARDINAL votes was required for finding liability under LAW . Mr PERSON 's claim that he had been the victim of unlawful defamation under ORG CARDINAL and CARDINAL by the newspaper and its editor - in - chief , respectively , was therefore rejected .

On the other hand , under LAW , which required only a simple majority , ORG declared the following CARDINAL statements , published respectively on the front page and on page CARDINAL of the CARDINAL DATE issue ( see paragraphs CARDINAL and CARDINAL above ) , null and void :

“ Permanent residence requirements : In DATE case scenario [ ORG ] may be forced to sell her property at Hvasser [ an island next to PERSON ] . The same applies to ORG director PERSON . According to the understanding of PERSON , their properties are on a list which the GPE will submit to GPE in the very near future . The list includes properties whose use is thought not to be in conformity with the permanent residence requirements . ”

“ ... PERSON may be forced to sell their properties at PERSON . The reason is that , according to GPE , they do not comply with the permanent residence requirements applicable to their properties . ”

ORG further decided that the applicants were jointly and severally liable , under section CARDINAL of LAW DATE , to pay Mr PERSON NOK CARDINAL in compensation for non - pecuniary damage . ORG in addition decided that no costs should be awarded with respect to the proceedings either before ORG or ORG .

The applicants appealed to ORG against the procedure followed by ORG ( saksbehandlingen ) , namely the fact that the issue of nullification had been determined by a simple majority , and against its application of the law ( rettsanvendelesen ) . On DATE ORG granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground .

By a decision of DATE ORG dismissed the applicants ' appeal and ordered them to pay Mr PERSON NOK CARDINAL for his legal costs . When deciding on the question whether to declare parts of the newspaper article null and void , ORG applied LAW of LAW . This limited the scope of ORG review of the facts of the case ( see further on this below ) . As far as the question of non - pecuniary damage was concerned , the appeal only referred to the application of the law . Therefore , even though the Code of Civil Procedure was to be applied in this regard , in accordance with LAW , ORG had to base its examination on the same facts as ORG in this connection too .

In his opinion , to which CARDINAL other members subscribed , Mr Justice PERSON held , inter alia :

“ ( CARDINAL ) I shall first look at how the statements must be understood . It follows from case - law that the interpretation is part of the application of the law .... It is the statements whose nullification is requested which are to be interpreted . The question is how these must be assumed to have been understood by the readers of the newspaper . Taking the wording as our point of departure , we must then look at what perceptions the statements create in the ordinary newspaper reader . In my opinion there is no conflict between the case - law of ORG and that of ORG as regards the subject matter of the interpretation ; see the references to ' the ordinary reader ' in the decisions of ORG .

( CARDINAL ) The statements to be interpreted are included in the newspaper 's first story of DATE . In the usual way the statements must be interpreted in context with the rest of the news report , with its typography and use of pictures . Like ORG , however , I find it clear that the subsequent articles , carried on DATE and CARDINAL DATE , are not of significance for this purpose . I shall return to the significance of the follow - up reportage in another context . Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested . ... The statements in the story of DATE are more of the nature of a description of a subsequent development , namely that PERSON has been ' cleared ' in the case . I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in PERSON ( ' PERSON ' ) DATE - CARDINAL .

( CARDINAL ) The unanimous ORG has summarised its interpretation as follows :

' When one accordingly considers the article of DATE in isolation , ORG agrees with ORG that the statements , seen in isolation and as a whole , must be perceived by the ordinary reader as saying that the Municipality , after considering the relevant properties , has taken the position that there has been a breach of the residence requirements for , inter alia , ORG 's property , and that his name has therefore been written down on a list that the GPE has decided to refer to the LOC Governor for further action . The story must appear to the ordinary newspaper reader as a statement that Mr PERSON has breached the residence requirements . '

( CARDINAL ) This by and large coincides with my own view . The core of the accusation was that Mr PERSON found himself on a list that GPE had prepared , and which contained the names of persons whom GPE considered to have breached the residence requirements . I do not , however , concur with the majority of ORG that the story ' must appear to the ordinary newspaper reader as a statement that PERSON has breached his residence requirements ' . It is clearly apparent from the article that it is the LOC 's opinion that is being reported , and that the list is to be sent to GPE for decision .

( CARDINAL ) I agree with ORG that the statements , as interpreted , contain a defamatory accusation ; see LAW . It is the first alternative in that provision that is relevant , and the allegation that GPE considered that the residence requirements had been breached was liable to damage his ' good name and reputation ' . An accusation of a breach of the law of this nature must be regarded as defamatory . It is the public 's moral judgment of the act that is decisive , and it is not a requirement that actual damage be demonstrated or substantiated . ORG found that no evidence of the truth of the accusation was presented , and this conclusion is binding on ORG .

( CARDINAL ) In the specific weighing of factors in our case , the point of departure must be that PERSON has published a defamatory accusation about factual matters , namely that the LOC had considered Mr PERSON 's property under the rules on residence requirements and was of the opinion that Mr PERSON had breached the residence requirements . In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property . ORG must find that the accusation was untrue – that applies both to the GPE 's alleged perception that the residence requirements had been breached , and the allegation that Mr PERSON 's name was entered on a list that the GPE , on the basis of such a perception , had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached . As regards the facts , a unanimous ORG has found that this was a provisional ' tip - off list ' based on tips from inhabitants and local politicians in GPE . It had been drawn up by the municipal administration in DATE , and bore the title ' Properties which should be verified in relation to the residence requirements . ( Not public ) ' . ORG also noted that GPE , at the time the newspaper published the article on DATE , had not ' undertaken any further processing of the provisional tip - off list from DATE . ORG is bound by this assessment of the evidence .

( CARDINAL ) The main rule in both NORP defamation law and LAW is that non - proven defamatory allegations of fact are not protected by freedom of expression . As regards ORG case - law , I refer to the judgment of CARDINAL DATE in PERSON and PERSON v. GPE ( no CARDINAL/CARDINAL ) , § CARDINAL , and to the judgment of DATE in PERSON v. GPE ( no . CARDINAL ) , § § CARDINAL and CARDINAL ; there must be special grounds for departing from this main rule .

( CARDINAL ) There is also a distinction between transmission of other people 's untrue accusations and the media 's own presentation of non - proven defamatory allegations . Freedom of expression stretches further to cover transmission , depending , inter alia , on who has made the allegation that is transmitted . If it is a report from a public authority , as in the PERSON case , freedom of expression enjoys stronger protection .

( CARDINAL ) In our case it can not be found that the newspaper has transmitted a defamatory accusation that was made by others . The article gives no source for the accusation , and ORG can not depart from ORG ( the majority 's ) assessment of evidence with regard to the newspaper 's having based itself on an anonymous source in relation to the information that Mr PERSON was on the list that was to be sent to the County Governor and that his property was ' thus to be looked into with regard to a breach of the residence requirements ' . The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source ; see PERSON , p. CARDINAL , and ORG judgment in PERSON , § DATE . Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources . I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation .

( CARDINAL ) The decision in Rt-CARDINAL - CARDINAL and the case - law of ORG shows that the specific weighing of factors must take into consideration several criteria . Of these I would emphasise the degree of public interest , the nature of the accusation , including whether the accusation is classified as a ' value judgment ' or a ' factual statement ' , whether it is directed against a public person or a private individual , and the degree of care , including the extent to which the media at the time of publication had factual support for considering the allegation to be true . In general , the protection of the expression will be stronger if it concerns matters of public interest , value judgments , imparting of information , a public person , and if there are strong reasons for holding the allegation to be true . Contrariwise : if the case concerns limited public interest , factual statements , the media 's own presentation , private persons and weak grounds for holding the allegation to be true , the protection of the expression will be weaker .

( CARDINAL ) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media 's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression .

( CARDINAL ) It is immediately clear that the question of enforcement of the residence requirements for DATE - round residences in a coastal municipality like PERSON is of public interest . For PERSON as the local newspaper in the region , this was naturally a topic for critical coverage . The fact that there existed a list of properties that there was a question of referring to the LOC Governor must also be regarded as being of interest for the residents of the region and the newspaper 's readership . Which properties or owners were on the list , on the other hand , must in my opinion be regarded as of limited public interest . If any of the individuals who were entered on the ' tip - off list ' DATE for example owing to their function , position of trust or participation in the public debate – had had a special connection to the issue of residence requirements , it might have been different . It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers . But I agree with ORG that the fact that Mr PERSON was a relatively famous person as the executive ORG does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements . The majority 's emphasis on his not having involved himself in the public debate on this topic appears very consonant with ORG reasoning in its judgment of DATE in PERSON and PERSON v. GPE ( no . CARDINAL ) , § DATE , first sub - paragraph , with its emphasis on ORG participation in public debate ' as the central theme .

( CARDINAL ) I would then return to the question of the journalist 's due care in the publication , and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true . I would first remark that there did not exist any written documentation from the municipality 's processing of the matter that could support the allegation , over and above what the unanimous ORG has characterised as ' the provisional tip - off list ' . As mentioned , ORG must in my opinion base its decision on what ORG has found with regard to the use of an anonymous source . I can not therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr PERSON 's name was on a list that the GPE should ' in the near future refer to GPE . This was the basis for the accusation that GPE considered that Mr PERSON had breached the residence requirements . Even if use of anonymous sources is a recognised tool of modern journalism , such use of sources will imply a stricter requirement of due care . Moreover , in such a situation , it must to a considerable degree be the newspaper 's risk that the factual information conveyed may turn out to be untrue .

( CARDINAL ) It is true that DATE the newspaper carried an interview with the director of ORG , in which it was confirmed that GPE would in the near future be sending a list to GPE . But in my opinion the interview does not allow the conclusion to be drawn that the GPE 's processing was concluded and that a definitive list therefore existed . In this connection I would not lay any particular emphasis on the fact that representatives of GPE DATE before consideration of the tip - off list – have considered that the residence requirement applied to the PERSON family 's property . Nor did the journalist claim to have based his story on information from these people . Otherwise , in my view , there are generally grounds for emphasising the big difference between being on a so - called tip - off list that has not been considered by the GPE and being on a list that the LOC has decided , after processing and consideration , to refer to GPE , who is the central government 's supervisory and administrative authority .

( DATE ) When PERSON was contacted by the journalist immediately prior to the newspaper 's running the story on DATE , his reaction was that the whole thing had to rest on a misunderstanding . Even if it is understandable that the newspaper may have wanted a broader statement from PERSON , I can not see that he can be blamed for his behaviour here . Without it having any importance for my view on the question I am discussing here , I would like to mention that it was subsequently discovered that PERSON had obtained legal advice on the residence requirements in connection with his family 's move to GPE in DATE in consequence of his work situation in GPE . As the situation must have appeared to him , when he was contacted by the journalist immediately before the newspaper ran the story on DATE , his reaction was in my opinion understandable . The circumstance that I have mentioned here can not in any event mean that the journalist may be regarded as having acted with due care .

( CARDINAL ) The articles that PERSON carried on DATE and CARDINAL DATE are of negligible significance for the questions I have now discussed . The stories came a relatively long time after the initial article . And under LAW of LAW , claims for nullification must be rejected when the person making the accusation ' withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person ' . PERSON has not , however , requested the case to be dismissed from the courts , and I have no occasion to enter into any discussion of this question . I would , however , remark that NORP defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions , and not the assessment of unlawfulness ( rettstridsvurderingen ) .

( CARDINAL ) As the case now stands , I can not agree with PERSON that the newspaper 's follow - up report means that there is on the whole a balanced presentation suggesting that the statements in the story of DATE can not be deemed unlawful . The story of CARDINAL DATE was in particular angled in such a way as to make it less appropriate as a modification of the original statement 's defamatory character ; see the use of the expression that Mr PERSON ' is escaping ' the residence requirements . In the discussion of CARDINAL DATE , under the headline ' PERSON clarifies ' , there is a more neutral correction , but it is not stated here either that Mr PERSON has not been on any list that has been considered by the GPE .

( CARDINAL ) By way of conclusion I see good reason to emphasise : as will be apparent from what I have reproduced from the first voting judge in GPE . DATE - CARDINAL , in considering specific statements the press 's role as a central practitioner of freedom of expression must be weighed against the interests of privacy , including the reputation of the individual . When the expression concerns a case of public interest , the role of the press as a ' public watchdog ' means that interference with freedom of expression requires a weighty justification . In our case it is the protection of Mr PERSON 's reputation that calls for the interference . The only way I can see the situation is that PERSON could have highlighted the residence requirements issue critically , as it did in the reportage of DATE , without the strong focus on Mr PERSON personally – a focus that rested on a deficient factual basis .

( CARDINAL ) In the light of this I have concluded that the statements of which nullification is requested are not protected by LAW and that the request must be granted . Since the special arguments regarding the compensation claim for non - pecuniary damage have not been maintained , it follows that this part of the judgment is also upheld . ”

NORP The dissenting judge , Mr Justice PERSON , stated :

“ ( CARDINAL ) ... I concur that in its news coverage of DATE PERSON published a defamatory statement – an accusation of a factual character – for which there was no factual basis . I also agree with the first voting judge that the core of the accusation is that Mr PERSON found himself on a list that GPE had drawn up , which contained the names of individuals whom GPE considered to have breached the residence requirements . This would , however – assuming it was DATE not have been a final declaration that there had been a breach of the residence requirements . For this reason , among others , I agree with the minority of ORG and ORG that the accusation lies in the lower stratum of what can be covered by LAW . I also have the impression that ORG majority by and large agree with this .

( CARDINAL ) When an untrue defamatory statement is made , the point of departure is also clear under ORG case - law concerning LAW : the accusation is not protected by freedom of expression . But exceptions to this may be contemplated . If the accusation is to enjoy protection under freedom of expression , it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper . I consider that these criteria were met in this case .

( CARDINAL ) There can be no doubt that the general subject with which the newspaper was concerned , and with which the news coverage of DATE really dealt , namely compliance with the rules on residence requirements , was and is of great public interest . The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of PERSON . I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals , when they are considered especially relevant . When individuals are unwillingly brought forward , and are subjected to accusations of crime and so forth , a mass medium must have good reasons for this , for example if the person concerned has sought out the light of publicity in this area , or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society . At the time in question Mr PERSON belonged to the top management of CARDINAL of the country 's biggest industrial conglomerates , and his name was not unfamiliar in the news . In my opinion individuals who have sought prominent positions in society , which require a special degree of trust from the public , must to some extent accept that the media will follow them with the eyes of ORG , not just in their professional activities but also when , in the more private sphere , they challenge laws and other regulations that are particularly meant to safeguard the interests of society . It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest , even if the breach carries no criminal responsibility or the penalties are minor . In this case the newspaper thought that PERSON had broken the rules on residence requirements , which in public opinion was and is of major social importance , even if such a contravention is not a criminal offence . I have difficulty seeing that it was not a matter of public interest if such a very prominent person as PERSON had not complied with the residence requirements with regard to his property in LOC .

( CARDINAL ) The question then becomes whether the newspaper has acted with the requisite care . It must be noted that the journalist used an anonymous source when he wrote that PERSON was on the LOC 's list of those who were considered to have breached the residence requirements . It is undisputed that for a long while PERSON had been working on this topic , and that the journalist – who lived at DATE had been in contact with several representatives of the Municipality . It must also be noted that the journalist , on application to the GPE , received confirmation that there existed a list that the LOC had drawn up , but the mistake was that this was a list of individuals who , according to external tip - offs , had breached the obligation , and not a list of individuals whom the LOC had already found to have breached it . The newspaper thus confused the tip - off list , which contained Mr PERSON 's name , with the list that the GPE was indeed to refer to the LOC Governor for a decision on whether the residence requirements had been complied with .

( CARDINAL ) I can not see that the newspaper is much to be blamed for this confusion . The journalist had reason to believe that a municipal assessment had been carried out at that point . In the story of DATE the director of ORG confirmed that technical services would ' in the very near future ' write to the County Governor regarding individuals whom the GPE suspected of breaching the residence requirements . The director also stated : ' We know that the residence requirements are not being complied with for several properties in the LOC ' . And the director did not wish to say ' which properties are on the list we are referring to GPE . This last statement gave the clear impression that the list which GPE had assessed already existed . In addition , prominent representatives of GPE DATE such as the mayor and the director of ORG – subsequently stated that , at the time when the newspaper had carried the controversial reportage , they had been of the opinion that PERSON was in breach of the residence requirements . This is clearly apparent from ORG judgment , both the minority and majority remarks . PERSON was therefore close to the truth in its story of DATE . I would also mention that , according to the story , the newspaper had approached Mr PERSON for his view of the matter , but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding . ”

NORP Under NORP defamation law , there are CARDINAL kinds of response to unlawful defamation , namely the imposition of a penalty under the provisions in ORG and CARDINAL of LAW , an order under LAW of the LAW declaring the defamatory allegation null and void ( mortifikasjon ) and an order under LAW DATE to pay compensation to the aggrieved party . Only the latter CARDINAL were at issue in the present case .

Under LAW , a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court . In so far as relevant this provision reads :

“ CARDINAL . When evidence of the truth of an allegation is admissible and such evidence has not been produced , the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute . ”

Such a declaration is applicable only with regard to factual statements , the truth of value judgments not being susceptible of proof .

Although the provisions on orders declaring a statement null and void are contained in LAW , such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil - law remedy .

Section CARDINAL of LAW reads :

“ A person who has injured the honour or infringed the privacy of another person shall , if he has displayed negligence or if the conditions for imposing a penalty are fulfilled , pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable , having regard to the degree of negligence and other circumstances . He may also be ordered to pay such compensation for non - pecuniary damage as the court deems reasonable .

If the infringement has occurred in the form of printed matter , and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection , the owner and publisher are also liable to pay compensation . The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation ... ”

Conditions for holding a defendant liable for defamation are further set out in LAW of LAW , LAW which provides :

“ Any person who , by word or deed , behaves in a manner that is likely to harm another person 's good name and reputation or to expose him to hatred , contempt , or loss of the confidence necessary for his position or business , or who is accessory thereto , shall be liable to fines or imprisonment for a term not exceeding one year . If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances , imprisonment for a term not exceeding DATE may be imposed . ”

A limitation to the applicability of LAW follows from the requirement that the expression must be “ unlawful ” ( “ rettsstridig ” ) . While this is expressly stated in LAW , LAW has been interpreted by ORG to include such a requirement .

Further limitations to the application of LAW are contained in LAW , which , in so far as is relevant , reads :

“ CARDINAL . Punishment may not be imposed under Articles CARDINAL and CARDINAL if evidence proving the truth of the accusations is adduced .


No violation of Art. 8;No violation of Art. 6-1;No violation of Art. 14+8

The applicant was born in DATE and lives in GPE . In DATE a daughter , PERSON , was born to the applicant and his wife . In DATE the applicant and his wife separated . PERSON stayed with her mother . In DATE the applicant 's wife instituted divorce proceedings before ORG ( ORG ) . She requested that parental authority over PERSON be granted to her . The applicant applied for joint parental authority . Furthermore , the applicant requested that his right of access to PERSON be determined by a decision of the court . In these and the related proceedings , both spouses were represented by counsel .

On DATE ORG , following hearings on DATE and DATE , decided that , pursuant to LAW ( ORG ) ( see paragraph CARDINAL below ) , the applicant was entitled to see PERSON every second DATE as well as on GPE DATE , GPE DATE and Whit Monday .

ORG reaffirmed the principle that to maintain personal relations between a father and his child , subject to the best interests of the child , was a decisive factor when determining the right of access . Against this background , ORG considered that the applicant 's previous and extensive rights of access had , at least for the time being , to be reduced to visits once per fortnight . All the experts heard in the proceedings , i.e. the psychological expert ( report of DATE ) , the therapeutic pedagogue and a social worker of ORG ( Diakonisches Werk ) , gave evidence that the DATE child was exposed to a conflict of loyalty , which she experienced as a strong pressure , and that she could not cope with this situation . While it was true that PERSON was fond of the applicant and would be in a position to see him without fear if her parents managed to create an atmosphere which took the pressure off her , they had not been able to do so . The frequency of visits requested by the applicant could not , for the time being , be handled by PERSON . Although the applicant was aware of his daughter 's problems , he was incapable of accepting restrictions on access and did not show concern for the child 's psychological health . PERSON 's mother had not yet managed to give ORG such a feeling of security as to permit her to visit the applicant without feelings of fear . PERSON therefore needed the intervals of DATE as times of rest in her mother 's household .

On DATE the applicant lodged an appeal with ORG ( Oberlandesgericht ) .

On DATE ORG informed the parties of its intention to decide in a written procedure . The applicant stated his preference for an oral hearing .

On DATE ORG , after having granted the parties legal aid , amended ORG decision , increasing the applicant 's right of access by ruling that every first visiting DATE the applicant was entitled to see PERSON from DATE TIME until TIME . The remainder of his appeal was dismissed .

ORG confirmed the findings of ORG according to which a regular visit DATE best suited the child 's welfare . In so deciding , ORG had particular regard to the impact of the parents ' difficult relations which were in conflict with the best interests of the child ; the parents were not yet in a position to have a calm and objective discussion on questions relating to the right of access . On DATE an attempt at organising a dialogue between the parents at ORG ( Elternberatungsstelle ) of the local ORG ( DATE ) had failed . As long as there was no agreement between the parents , any visit was an emotional strain for the child . The applicant 's right of access had therefore to be assessed in the context of the continuing conflict between the parents .

The Court of Appeal further found that the regular visits decided upon by ORG best suited both the applicant 's wishes and the child 's welfare . The exercise of the right of access had functioned well since DATE . In particular , the child had calmed down and her sleep was no longer troubled . ORG , in agreement with the parties , further considered the report , dated DATE , of a social worker of ORG which had been obtained in the context of parallel proceedings concerning the exercise of parental authority . According to this report , no abnormality in PERSON 's behaviour had been observed . ORG found that this encouraging development did not yet permit a significant extension of the applicant 's right of access . However , taking a cautious approach , the visit on DATE could be extended to include TIME stay . Having regard to the psychological expert 's opinion of DATE , the objections previously raised by PERSON 's mother were no longer valid . Should PERSON experience any problems , her mother would have to see to it that the child would consider the visits with an TIME stay as a usual matter . Any further contacts , such as overnight stays DATE , routine telephone conversations and common holidays , were not yet possible , but could be envisaged in case the decision on access would prove successful .

The applicant referred the case to ORG ( Bundesverfassungsgericht ) . On DATE a panel of CARDINAL judges of that ORG refused to entertain the applicant 's constitutional complaint ( ORG ) .

ORG considered that the applicant 's complaint did not raise any issue of fundamental importance . In accordance with the case - law of that ORG , both the right of access of a parent not entitled to parental authority and the right to exercise parental authority granted to the other parent were protected by the right to respect for family life under LAW ) . The possibility , pursuant to LAW ( see paragraph CARDINAL below ) , to limit or exclude the right of access , if it was necessary for the child 's welfare , guaranteed an adequate protection of the child 's constitutional rights and ensured that the courts ' decisions in the matter were governed by the child 's best interests .

Furthermore , ORG found that the decision of ORG did not disclose any fundamentally flawed views on parental rights . Thus , ORG had considered the child 's welfare . The reasoned decision that the visits could only gradually be extended could not be objected to from a constitutional point of view . Furthermore , there was no indication that the procedural requirements were not met . In particular , the applicant had not shown that , following the failure of a conversation between the former spouses at ORG , ORG was prevented from reaching the conclusion that a fresh hearing would not permit any new findings .

On DATE ORG granted the applicant , at his request , an increased right of access in that he was now entitled to see his daughter every second weekend TIME and DATE TIME and also for a period of DATE . ORG observed that the right of access such as that presently granted to the applicant enabled him to be sufficiently informed about PERSON 's well - being and to have contacts with her , and also satisfied his daughter 's need to be with her father .

On the appeal of the child 's mother , ORG amended this decision on DATE . It revoked the arrangement concerning DATE but extended the applicant 's visiting DATE , after having heard the then DATE PERSON , her parents and a representative of ORG .

On DATE ORG , following an oral hearing on DATE , granted the parents ' divorce on the ground of the breakdown of the marriage and awarded the mother , pursuant to LAW ( see paragraph CARDINAL below ) , parental authority over PERSON .

ORG found that the issue of parental authority had been determined on the basis of what was in the best interest of the child . Having regard to the statements of the psychological expert in the proceedings concerning the applicant 's right of access , ORG noted that PERSON 's mother educated and looked after her daughter in an atmosphere of love and understanding and took an intense interest in ensuring her well - being . According to ORG , the conditions for the joint exercise of parental authority , requested by the applicant , were not met . In particular , the parents ' relations with each other regarding PERSON , as well as their relations with PERSON , were not free of conflict . The applicant was not ready to accept that PERSON 's living situation had changed following her parents ' separation . As a DATE child , she needed a stable life without being torn between different apartments and different styles of education . The ORG noted that , notwithstanding the applicant 's interest in PERSON 's well - being , he failed to see that his wishes obstructed PERSON 's psychological development .

On DATE the applicant lodged an appeal with ORG .

On DATE ORG requested PERSON 's mother as well as the competent ORG to comment on the applicant 's submissions on appeal . On DATE ORG , upon the instructions of the competent ORG , submitted a report . The report contained arguments in favour of granting the applicant increased access rights . The parties were given the opportunity to comment upon that report in writing . The applicant stated his preference for an oral hearing .

On DATE ORG refused to grant the applicant free legal aid and dismissed his appeal .

ORG observed that the mutual willingness of the parents to co - operate , namely to continue of their own will to bear common responsibility for their child , was an essential condition for a reasonable joint exercise of parental authority . It was obvious that the joint exercise of parental authority by disagreeing parents would be a source of ongoing litigation which , as experience had shown , was detrimental to the child . In the present case the parents , in particular the child 's mother , did not accept a sharing of responsibilities . In the proceedings regarding the applicant 's right of access , which had been pending since DATE , the parents had continuously had major disagreements , and the attempt at a dialogue in the framework of ORG had finally failed in DATE . Therefore , if parental authority could solely be exercised by CARDINAL of the parents , it had to be awarded to the child 's mother for the reasons set out in ORG judgment . The applicant had not raised any serious objections to the reasoning set out in that judgment .

ORG also considered that an oral hearing with the parties was not necessary , the relevant facts resulting clearly from the case - file .

On DATE a panel of CARDINAL judges of ORG refused to entertain the applicant 's constitutional complaint .

ORG considered that the applicant 's complaint did not raise any issue of fundamental importance . It recalled that when courts had to decide on the attribution of parental authority following the parents ' divorce , they had to balance the positions of both parents without encroaching upon the parental priority in educational matters . In such cases , the courts were not , therefore , subject to the strict conditions in respect of interfering with parental rights . The legislator and , in application of the relevant legal provisions , the courts were entitled to transfer the main responsibility for the education of a child to CARDINAL parent if the conditions for the joint exercise of parental authority were not met . Furthermore , according to ORG , ORG view that the conditions for ordering the joint exercise of parental authority were not met in the instant case could not be objected to from a constitutional point of view . Moreover , there was nothing to show that ORG should have conducted further inquiries .

Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows ( ORG 's translation ) :

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child 's relationship with others or seriously interfere with the child 's upbringing .

NORP The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under LAW , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child 's welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child 's personal circumstances may request such information from the person having custody in so far as this is in keeping with the child 's interests . The guardianship court shall rule on any dispute over the right to information .

NORP Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

Article DATE ( ORG 's translation ) provide as follows :

“ CARDINAL . If the parents divorce , the family court decides to which of the parents parental authority over a common child should be awarded .

NORP The court makes that determination on the basis of the best interests of the child ; consideration shall be given to the child 's ties , especially to his or her parents and brothers and sisters . ”

The statutory provisions on parental authority and access are to be found in LAW ( Bürgerliches Gesetzbuch ) . They have been amended on several occasions and many were repealed by the amended LAW ) of DATE ( ORG ( PERSON - BGBl ) DATE , p. CARDINAL ) , which came into force on DATE .

Article CARDINAL § CARDINAL reads as follows ( ORG 's translation ) :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . Parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Exclusive parental authority now represents the exception to the rule of joint exercise of parental authority . DATE ( ORG 's translation ) provides :

“ Where parents exercising joint parental authority are separated not merely temporarily , each parent may make an application to the family court to be awarded sole parental authority or part of sole parental authority .

The application shall be allowed where

NORP the other parent agrees , unless the child has completed the age of fourteen and objects to such sharing or

it may be expected that the withdrawal of joint parental authority and its transfer to the petitioner is in the best interests of the child . ”


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . At the material time , in DATE and DATE , he was registered as being domiciled at ORG , in the neighbourhood of ORG , a village in the north - western corner of GPE . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE . ORG were represented by their Agent , Mr ORG , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

The present application has its background in criminal proceeding brought against the applicant on account of his having fished lumpfish on certain dates in DATE and DATE in the net zone of the NORP farm in GPE in the western part of GPE . At the time he was CARDINAL of CARDINAL co - owners of the farm . His sister , CARDINAL brothers – including PERSON ( GHG ) - and the applicant each owned PERCENT of the property ; CARDINAL was owned by CARDINAL other individuals . The applicant and his siblings had acquired their shares in the property as a result of a gift from their father , PERSON , according to a Deed of Transfer to this effect dated DATE .

ORG at CARDINAL time owned the vessel ORG , a boat which had been allocated a catch permit for lumpfish on the basis of LAW and the Regulation applying to such permits . ORG had used the boat ORG for catching lumpfish since DATE , and on DATE a catch permit for lumpfish was issued in respect of the vessel under the new system when LAW came into force . On DATE this catch permit for lumpfish was transferred from ORG DATE to another boat , ORG DATE ) , also owned by ORG . On DATE , he sold the Díva to the company ORG , together with all its fishing permits ; in addition , it was stated specifically that all the boat ’s catch experience was to be the property of the purchaser . The purchase price was ORG CARDINAL . The Deed of Transfer identified LAW as the owner of all the share capital in ORG .

The lumpfish catch permit in question was assigned yet again on DATE , and is currently attached to the boat PERSON DATE ( DATE ) , which is also owned by ORG ’s company ORG .

In DATE the applicant was working in PERSON . As the volume of his work there declined and his income dropped , he acquired a new QUANTITY long boat and started fishing for lumpfish from the LOC farm in DATE .

On DATE a check by fisheries inspectors of the fish - processing plant PERSON ehf . in PERSON revealed entries in the company ’s weight records showing that the boat ORG had landed QUANTITY of lumpfish roes in DATE and DATE , which the processing plant had purchased from it . On DATE , the fisheries inspectors visited the applicant at ORG . It was then found that the boat , ORG , which belonged to the applicant ’s father , lay upside down on dry land , and had been replaced by the plastic boat that the applicant had bought in DATE .

On DATE , the LOC Commissioner issued an indictment against the applicant for violations of the fisheries legislation by having , on specified dates in DATE and DATE , caught lumpfish from his unregistered boat without a general commercial fishing permit and without a permit to catch lumpfish ; these catches of lumpfish produced QUANTITY of lumpfish roes , which he had sold to PERSON ehf . in PERSON , in violation of section CARDINAL of LAW . CARDINAL/CARDINAL , section CARDINAL of the Act No . CARDINAL/CARDINAL on Fishing in GPE ’s GPE ( hereinafter “ the CARDINAL Act ” ) and section CARDINAL of Regulation No . CARDINAL on LOC . ORG requested that the applicant be sentenced for these violations and be made to suffer confiscation of the proceeds obtained through them .

The applicant , for his part , maintained that the owners of land adjacent to the sea had an exclusive right to fish lumpfish within the net zone as it was an inseparable part of the farm and the owners had not been deprived of their property rights in the net zone . In his view , the provision concerning fisheries jurisdiction ( section CARDINAL of GPE in GPE ’s Fisheries Jurisdiction , No . CARDINAL , hereinafter “ the DATE LAW ) extending from the water ’s edge to the outer limits of the economic zone ought to be interpreted with reference to the rights that already existed and which had not been overruled despite a definition in ordinary legislation . LAW ought to be interpreted with consideration being given to the more extensive rights of other parties which were valid before the LAW took effect ; otherwise , it would have been necessary to state that the LAW was intended to prevail over rights of ownership that were protected under LAW .

It was undisputed that on the dates indicated in the indictment the applicant had been fishing lumpfish without a permit within the net zone of the LOC farm . Nor was it disputed that he was co - owner of the farm and that he had obtained the permission of other co - owners to fish lumpfish within the net zone of the farm .

On DATE the LOC ORG convicted the applicant of the offences and sentenced him to pay a fine of ORG CARDINAL to the ORG , failing which he was to serve CARDINAL days’ imprisonment . It further ordered the confiscation of ORG CARDINAL,CARDINAL corresponding to the value of the QUANTITY lumpfish that the applicant had caught . In addition , he was ordered to pay the entirety of the court costs .

ORG judgment contained the following reasons :

“ In the absence of any proof to the contrary , the accused ’s assertion that he caught all the lumpfish within the net zone of the property in question will be used as a basis for this judgment .

Ever since ancient times , there have been legal provisions on the rights of landowners to make catches within net zones in GPE . PERSON [ the ancient law code of GPE ] states that all men have the right to catch without incurring a penalty outside the net zone , the outermost boundary of the net zone being where a seal - net , from mainland or skerry , touches the bottom at a depth of CARDINAL meshes with the floats on the surface at low tide , with the footline touching bottom . LAW in the PERSON law code [ from DATE ] stated that all men had the right to catch without incurring a penalty outside the net zone , the outermost boundary of the net zone being where a seal - net touched bottom at a depth of CARDINAL meshes with the floats on the surface .

The most recent provisions in NORP law regarding net zones are to be found in Act No . CARDINAL/CARDINAL . Pursuant to section CARDINAL , the outermost boundary of the net zone means , for the purposes of the LAW , QUANTITY out from the shore of a lake to which a property is adjacent , and the sea - floor QUANTITY out from the high - water mark of a property during DATE tides . Net zones are defined in the same way in LAW No . CARDINAL/CARDINAL . Its section CARDINAL states that only landowners have the right to hunt animals on their land . Under the same article , persons other than the landowners do not have the right to hunt animals in GPE ’s economic zone except outside the net zones .

A judgment by ORG , reported in ORG DATE p. CARDINAL , describes how section CARDINAL of the Decree on Hunting issued in DATE stated that from that time forth , only landowners in GPE had the right to hunt animals and birds unless otherwise stated in the Decree . Furthermore , section CARDINAL stated that all statutory articles on fishing and whaling that were not amended by the Decree were to remain unchanged for the time being . The ORG took the view that it could not be considered that the provisions of section CARDINAL of the Decree , on the landowners’ right to make catches QUANTITY out to sea from the high - water mark at DATE tides , involved a different and more ample right for the landowners regarding catches than the right provided for in section CARDINAL of the Decree .

The same judgment went on to say that it could not be seen , from the ancient laws , that net zones in the sea had been regarded as being subject to the same authority of ownership by land owners as the land above them . Nor had the land owners , under the legislation of recent times , been granted all the same ownership rights over net zones in the sea that they enjoyed regarding the properties that were adjacent to them . Under legislation postdating the aforementioned Decree , property owners had not been unequivocally granted an exclusive right to catch marine fish in net zones based on a distance out from the high - water mark during DATE tides . Nor had the provisions of the LAW concerning the definition of net zones based on the depth of the sea been repealed by any act of the legislature , though they were not incorporated in the DATE edition , or subsequent editions , of the statute book .

Although it is therefore not clear in law whether land owners possess all the same rights in the net zones as they do on the land above them , and whether their right to catch marine fish should be based on a distance out from the land or on the depth of the sea , it must be considered that it is not evident that the accused caught lumpfish at a greater depth than is specified in LAW in the PERSON . In this judgment , the provision of that LAW stating that the landowner owns all fishing rights in the net zone and catch rights on the beach will be taken as a basis .

Under section CARDINAL(CARDINAL ) of LAW , the marine area from the water ’s edge to the outer limits of NORP s economic zone is considered as constituting its fisheries jurisdiction . Thus , the net zone is included in the fisheries jurisdiction . The same definition can be found in LAW No . CARDINAL .

Section CARDINAL of the CARDINAL LAW states that its aim is to promote the prosperity and efficient utilisation of the economically exploited stocks within GPE ’s fisheries jurisdiction and so to ensure firm employment and human settlement in the country . The same aim on the part of the legislature can be found in LAW No . GPE , which also states that the commercially exploited stocks in NORP waters are the common property of the NORP people .

Notwithstanding the aforementioned rights of landowners in the net zone , and taking into account ORG judgment in case no . CARDINAL/CARDINAL ( Court Reports CARDINAL p. CARDINAL ) , the ORG is not able to concur with the view that the legislature may not protect the commercially exploited stocks in the fisheries jurisdiction and promote their efficient utilisation by prohibiting landowners from making catches from these stocks , both within the net zone and outside it , except with special permits . The accused , who had the permission of the landowner to catch lumpfish within the net zone , was therefore nevertheless obliged to respect the prohibition contained in section CARDINAL(CARDINAL ) of LAW on the catching of lumpfish without a special permit from ORG . LAW . CARDINAL/CARDINAL on LOC states that the condition for obtaining a special permit is the possession of a commercial fishing permit .

Accordingly , the accused violated the provisions of LAW . MONEY , which prohibits fishing for commercial purposes off GPE ’s coasts by persons other than those who have received a general fishing permit , and has incurred punishment under LAW of the same LAW ( see section CARDINAL of Act No . CARDINAL/CARDINAL and LAW No . CARDINAL/CARDINAL ) . Furthermore , his actions constitute a violation of LAW CARDINAL of LAW and section CARDINAL ( see section CARDINAL ) of the Regulation No . CARDINAL ( see section CARDINAL of LAW ) . ”

The applicant appealed to ORG , which on DATE upheld ORG judgment in extenso and ordered the applicant to pay the entirety of the legal costs in the appeal .

NORP law concerning the rights of landowners in respect of the catching or hunting of fish , birds , whales and seals and ownership of driftwood in their net zones may be found in the provisions set out below ( the different legislative definitions of the net zone boundaries are not in issue in the present case ) .

The ancient NORP law code , PERSON , dating from CARDINAL , stated in LAW of LAW :

“ The landowner shall also own [ a whale in which a missile or a marked harpoon is fixed ... ] and all drift materials , and all those whales which swim ashore fleeing from men and all catches in the net zone and on the beach . ”

The Decree on Hunting in GPE of DATE provided :

Article CARDINAL

Landowners in GPE shall henceforth own exclusive rights to catch animals [ and birds ] unless other provisions are made in this Decree . Furthermore , the catch rights they have acquired by law outside their properties shall remain completely intact .

Article CARDINAL

... the owner shall own the right to make catches in an area extending QUANTITY out into the sea from the low spring tide mark ; this is his net zone

Under LAW , hunting animals on the land properties of other persons without their permission , or making catches in their net zones , is a criminal offence that is punishable by a fine .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of Act No . CARDINAL on ORG and Wild Mammals read :

“ All NORP citizens , and also foreign nationals who are domiciled in GPE , may hunt animals on common land , on pastureland lying outside the property boundaries of legally - defined farms , providing that no one is able to demonstrate his right of ownership over them , and also in GPE ’s economic zone outside the net zones of land properties . They shall have obtained licences for this purpose under LAW and regulations issued hereunder .

Landowners shall have an exclusive right to hunt animals on their properties and dispose of such rights unless other provisions are made in law . ”

According to the Government , the above - mentioned provisions , in particular that of PERSON , had been interpreted to the effect that ownership of the net zone in the sea conferred on the landowner an exclusive right to make catches of all types , including fish . However , in so far as relevant for the present case , such rights were restricted by the statutory provisions referred to below .

LAW , No . CARDINAL ( hereinafter referred to as “ the DATE LAW ) , GPE ’s first comprehensive piece of legislation covering fisheries management , as in force at the material time ( later replaced by LAW DATE , without substantive amendments ) contained the following provisions of relevance :

Article CARDINAL

“ The exploitable marine stocks of the NORP fishing banks are the common property of the NORP nation . The objective of this LAW is to promote their conservation and efficient utilisation and thus to ensure stable employment and settlement throughout the country . The allocation of harvest rights provided for by this LAW endows individual parties neither with the right of ownership nor irrevocable jurisdiction over harvest rights . ”

Article CARDINAL

“ For the purposes of this LAW , exploitable marine stocks shall include marine animals and marine plants found within the NORP exclusive fishing zone which are or may be exploited commercially and are not covered by special laws .

GPE ’s exclusive fishing zone includes the ocean area extending from the low - water line to the outer limits of GPE ’s exclusive economic zone ( EEZ ) as defined by Act No . CARDINAL , of DATE , concerning the NORP territorial sea , exclusive economic zone and continental shelf . ”

Article CARDINAL

“ No one may pursue commercial fishing in NORP waters without having a general fishing permit . Fishing permits shall be issued for a period of one year at a time . ”

Article CARDINAL

“ Commercial fishing permits may only be granted to fishing vessels holding certificates of seaworthiness and registered in ORG or the special registry of the ORG for boats shorter than QUANTITY in length . Their owners and operators must fulfil the requirements to pursue fishing in GPE ’s exclusive fishing zone , as provided for in GPE by Foreign Parties in ORG and the Act concerning NORP and Processing by ORG in GPE ’s exclusive fishing zone . A fishing vessel may , however , only be issued CARDINAL type of commercial permit for DATE , i.e. a fishing permit with general catch quota , fishing permit with cod catch maximum , cf . Temporary Provisions I of this LAW , a fishing permit with catch quota awarded in accordance with LAW of this LAW ( hook catch quota ) or fishing permit with pursuit DATE . ”

Article CARDINAL

“ Leisure fishing for personal consumption is authorised without special permit . Such fishing may only be pursued with handline without automatic jigger . Any catch obtained as provided for by the provision of this paragraph may not be sold nor used for financial gain by any other means . [ ... ] ”

Article CARDINAL

“ Violations of the provisions of this LAW , or of rules issued hereunder , and of the conditions stated in permits , shall be punishable by fines , irrespective of whether they were committed intentionally or through negligence . In the case of gross or repeated violations committed intentionally , they shall also be punishable by up to six years’ imprisonment . ”

The other principal piece of legislation , LAW in GPE ’s Fisheries Jurisdiction , No . CARDINAL ( hereinafter referred to as “ the DATE LAW ) , included the following provisions :

Section CARDINAL

“ The objective of this LAW is to promote the well - being and efficient utilisation of the exploitable stocks within GPE ’s fisheries jurisdiction , so ensuring reliable employment and settlement in the country . ”

Section CARDINAL

“ For the purposes of this LAW , the term ‘ exploitable GPE shall include marine animals , and also marine plants , which are exploited , or may be exploited , within GPE ’s fisheries jurisdiction and which are not covered by separate legislation .

GPE ’s fisheries jurisdiction includes the ocean area extending from the low - water line to the outer limits of GPE ’s exclusive economic zone ( EEZ ) as it is defined in the Act No . CARDINAL of DATE on LOC , Exclusive Economic Zone and LOC . ”

Section CARDINAL

“ Catches of lumpfish shall be subject to special permits issued by ORG , and only those vessels which were entitled to permits during DATE , according to the rules applying thereto , shall qualify for such permits . The Minister shall issue regulations containing further provisions on the arrangements regarding lumpfish catches and the fishing season according to this paragraph . Amongst other things , the Minister may determine that permits will be confined to a specific area and that permits for fishing in a particular area will be granted only to vessels registered in that area . The Minister may also set rules authorising the transfer of lumpfish fishing permits between vessels . ”

Section CARDINAL

“ Violations of other provisions of this LAW , or of regulations issued hereunder , or of the conditions of fishing permits , shall be punishable by fines of not less than ORG CARDINAL,CARDINAL and not exceeding ISK CARDINAL , depending on the nature and scope of the violation . ”

The Government submitted that the requirement in section CARDINAL of a special permit for commercial fishing of lumpfish had formerly been contained in and transferred from LAW . According to an explanatory note the rational for the special rule in section CARDINAL was :

“ It is proposed in the first paragraph of this Article that catches of lumpfish be subject to special permits and that only those who were entitled to such permits under the current rules will qualify for permits . Regulation No . CARDINAL of DATE , on catches of lumpfish , contains provisions on lumpfish fishing in GPE , specifying what vessels will qualify for lumpfish catch permits . The issue of permits has been limited for DATE , and is restricted to those parties who made catches during DATE . It should be pointed out here that marine biologists have not proposed that lumpfish catches be limited ; on the other hand , it has been felt that there is reason to impose limits on these catches , first and foremost because the number of small fishing boats is now so great that without limits , catches could get completely out of control in a short time . In this context , attention must also be given to conditions on the market and the right of those persons who have engaged in catches of this species and as a result of doing so have smaller quotas in other fish species . The Regulation on catches of lumpfish was issued under the second paragraph of LAW ; here it is proposed that it be stated clearly that these catches are to be subject to permits , and also that provisions be laid down authorising the Minister to control these matters in the way that this has been done up to now . ”

The Regulation on lumpfish catches , No . CARDINAL/CARDINAL ( hereinafter referred to as “ the DATE Regulation ” ) , stated inter alia :

Article CARDINAL

“ All catches of lumpfish within GPE ’s exclusive fishing zone are forbidden without prior special permits from ORG . ”

Article CARDINAL

“ Permits for lumpfish catches may only be granted to those vessels which were entitled to such permits in DATE according to ORG . CARDINAL , providing that they hold commercial fishing permits ( see the DATE ... Act ) . Vessels CARDINAL GRT may not be granted permits for lumpfish catches if they did not hold permits for lumpfish catches during DATE . The issue of permits , and permits for lumpfish catches , may be made subject to such conditions as are considered necessary , including conditions regarding the submission of reports on the catches . ”

Article CARDINAL

“ When a vessel which has held a permit for lumpfish catches is sold , the permit shall accompany the vessel unless other provisions are made in the purchase contract . ”

Under other provisions of the Regulation on lumpfish catches , the fishing grounds around GPE were divided into CARDINAL catch areas , and each permit was restricted to a particular catch area and catch period . In most of these areas , the catch period lasted from DATE to DATE . The regulation contained further rules on the maximum number of lumpfish nets that permit - holders could lay in the sea , and rules on the minimum mesh size of lumpfish nets .

Section CARDINAL of the Act on the Treatment of Commercial Marine Stocks , No . ORG stated that its object was to improve the treatment of commercial marine stocks and to promote their renewable utilisation so as to ensure maximum productivity for the benefit of the NORP nation in the long term . The LAW laid down rules on catch gear , the monitoring of the utilisation of catch quotas and the weighing and recording of marine catches ; it also states that the application and supervision of fisheries legislation is to be in the hands of a special institution , ORG .