5.  The applicant was born in 1958 and lives in Oslo. She is a well-known lawyer who mainly deals with criminal and child custody cases. She is married to a businessman and was formerly a talk show host and active participant in public debate.
6.  In August and September 2010 the applicant lodged two complaints with the Press Complaints Commission (Pressens Faglige Utvalg) against two publications owned and controlled by Mr Trygve Hegnar: the weekly and daily business newspapers Kapital and Finansavisen. Mr Hegnar also owned and controlled the internet portal Hegnar Online, which focused mainly on business and financial news.
7.  All three publications had, from late summer 2010, published articles concerning the applicant’s role and relationship with a wealthy, elderly widow from whom she would inherit. The publications contained direct or indirect suggestions that the applicant had exploited her emotionally or financially. After the widow passed away in 2011, her relatives instituted proceedings against the applicant, challenging the validity of her will. The inheritance case, which the applicant won both at first and second instance (in 2012 and 2014 respectively), was covered extensively in the above publications.
8.  The Hegnar Online website featured a forum – at a separate web address, but to which access was given via the online newspaper – where readers could start debates and submit comments. There was no editorial content in the forum; all content was user-generated. It was possible for users to comment anonymously and there was no requirement to register. More than 200,000 comments were posted every month and the debate forum was among the biggest of its kind in Norway. The forum was divided into many subforums, with topic headings such as “Shipping”, “IT”, “Finance”, “Property”, “Media” and “Theme of the day” (“Dagens tema”).
9.  On 5 November 2010 a forum thread was started in the subforum “Theme of the day” under the heading “Mona Høiness – the case is growing, according to Kapital” (“Mona Høiness – saken vokser, sier Kapital”), where the original poster wrote only “What is the status?” (“Hva er status?”). The next comment, posted the same day, read “Sexy lady. What is the case about ???” (“Sexy dame. Hva gjelder saken ???”), to which another commenter responded “Money.” At 12.32 p.m. the following day another comment was made, in which the poster claimed to “know someone who knows someone” who had been “lucky to have shagged” the applicant (“Sexy hun da! Kjenner en som kjenner en som knulla henne. Heldiggris” – hereinafter “comment 1”).
The thread continued the same day with a commenter writing: “status quo” and “ab absurdo”. The following comment was made the next day: “I read about this case briefly several weeks ago. I now see that Kapital gives it the front page. The conflict relates to an apartment at Frogner + wealthy old lady with whom Høiness has developed a mother-daughter relationship over many years.” (“Leste om denne saken såvidt, for flere uker siden. Ser nå at Kapital gir den forsiden. Striden gjelder en leilighet på Frogner + velstående eldre dame som Høiness har utviklet et mor/datter-forhold til over mange år.”)
The next comment read: “Is it Kapital’s Case [(“Saken til Kapital”)] which is growing?”, to which another commenter responded with the wordplay: “It is Hegnar’s thing [(“saken til Hegnar”)] which is growing.” This was followed by the comment “If you are looking for pretty ladies, look at the thread ‘Pride of the nation’”, to which another poster added: “And that about the Marilyn-revelation”.
The next day, on 8 November 2010, a new comment was made: “With 100 million at stake it is clear that one would bend the ethical rules a little” (“Med 100 mill i potten er det klart du tøyer de etiske reglene litt”), before another poster asked: “Has she become pregnant, or is she only gaining weight?”, and yet another poster followed with the above wordplay: “Is Hegnar’s stake [(“staken til Hegnar”)] still growing?”. At 5.55 p.m. another commenter wrote: “If I were to s–– her, it would have to be blindfolded. The woman is dirt-ugly – looks like a wh––“ (“Skulle jeg k–– henne måtte det bli med bind for øya. Synes dama er dritstygg – ser ut som en h––” – hereinafter “comment 2”). Thereafter a poster asked: “How old is she now?”, to which the last commenter responded: “She’s 83 by now [(“etter hvert”)]. Time flies!”
All the comments were made anonymously and thus the number of possible different posters was unknown. According to a printout made at 7.26 p.m. on 8 November 2010, comment 1 had by then been read 176 times, while comment 2 had been read twelve times.
10.  The same day, 8 November 2010, the applicant’s counsel wrote a letter to the Press Complaints Commission, in the course of the proceedings concerning one of the above-mentioned complaints in respect of the coverage of the inheritance case (see paragraph 7 above). The counsel stated, inter alia, that a new report had been published in Kapital and that the case had been chosen as the “Theme of the day” on Hegnar Online. In particular, Hegnar “allowed the posters to present serious and degrading sexual harassment” of the applicant. In the letter, it was expressly stated that this was not to be made part of the existing complaint against Kapital, so as not to further delay the handling of that complaint by the publisher. A copy of the printout of the forum thread in question was attached (see paragraph 9 above).
11.  Mr Hegnar received a copy of the letter and in an email to the Press Complaints Commission on 9 November 2010 stated, inter alia, that Hegnar Online was a separate newspaper with its own editor, unrelated to Kapital. He submitted that it could not therefore be taken into account in a complaint against the latter. The Commission wrote an email to both parties the following day stating that it – having spoken with the applicant’s counsel – noted that the letter of 8 November 2010 did not amount to a new complaint, but was an appendix to the documents in the pending case against Kapital and did not relate to Hegnar Online.
12.  Comments nos. 1 and 2 were not deleted. The applicant’s counsel sent an email at 12.32 p.m. on 17 November 2010 to Mr B. and Mr H., an editor working for Hegnar Online, requesting written confirmation that the comments would be deleted immediately and arguing that Mr Hegnar himself had “declined all responsibility for the matter” (“fraskrev seg alt ansvar for saken”).
13.  Mr B. from Hegnar Online responded at 12.45 p.m. the same day, saying that he was sorry that comments in breach of their guidelines had not been deleted, and that he had now deleted the comments he had found.
14.  On 19 November 2010 Mr Hegnar wrote an editorial in Kapital commenting on the applicant’s remarks on the forum comments in the context of the complaint against Kapital (see paragraph 10 above). In the editorial, he stated that Hegnar Online was unrelated to Kapital and, furthermore, that Kapital would not take responsibility for what eager commenters wrote on Hegnar Online, which he described as “an open forum”. The editorial read, inter alia, as follows:
“... Many strange, annoying and plainly wrong things are written on such open websites, where there is subsequent control and no editorial treatment prior to publishing.
Also we ourselves must, at times, endure harsh comments (“tåle røff omtale”) on such websites, but we cannot rush off to the Press Complaints Commission with it.”
15.  On 23 November 2010 the Press Complaints Commission examined the applicant’s complaints against Kapital and Finansavisen (see paragraph 6 above), and found that both publications had breached the code of conduct for journalists (Vær varsom-plakaten): Kapital for their use of a misleading headline (case no. 187/10) and Finansavisen for not giving the applicant the opportunity to reply simultaneously (case no. 192/10).
16.  On 28 November 2010 a forum thread was started on the subforum “Media”. The thread starter, under the headline “Mona Høiness vs Trygve Hegnar”, commented on the inheritance case and the applicant’s allegation that she was being sexually harassed (see paragraphs 7 and 10 above). The next posting in the thread, made the same day, said only: “Ask if Mona knows trønderbjørn? :))” (“Spør om Mona kjenner trønderbjørn? :))”)
On 30 November 2010 the next poster commented: “some have a passion for popstars and football players, while others like to hang around centres for the elderly and old people’s homes”, before another wrote: “are you old, ill and confused? The law firm MH takes the case. NB! Pre-payment only”. At 11.02 a.m. the same day a comment raising the question whether the applicant was “still shagging” someone referred to by the nickname “trønderbjørn” (see paragraph 27 below) (“Driver hun fortsatt å knuller på denne trønderbjørn?”  hereinafter “comment 3”) was posted.
On 1 December 2010 a poster wrote: “saw a woman sneak out of borgen kremat. [(a crematorium in Oslo)] with two handbags filled with golden jewellery and wallets. She smiled knowingly ... [(“smilte lurt”)]”.
All the comments in the thread were made anonymously.
17.  On 3 December 2010 an editor at a radio station (Radio Norge) drew the applicant’s counsel’s attention to the debate that had been started on the Hegnar Online forum on 28 November 2010 (see paragraph 16 above) and enclosed a copy of the relevant thread in an email. From that it emerged that comment 3 had by then been read 115 times.
18.  On 6 December 2010 the applicant’s legal counsel wrote to Mr H., attaching the email from the editor at the radio station and demanding confirmation that harassing comments in the “Media” subforum would be deleted immediately. In an email the same day Mr H. replied that he had also been contacted by the radio editor directly on 3 December 2010 and, on checking, had seen that the comments had by then already been deleted.
19.  On 7 January 2011 a complaint concerning the two forum threads as a whole (see paragraphs 9 and 16 above) was lodged with the Press Complaints Commission. On 22 February 2011 it concluded in general terms that neither comments with sexual content nor comments that accused the applicant of unethical or unlawful behaviour in the inheritance case were in compliance with the code of conduct for journalists, and that the editors should accordingly have removed them immediately, pursuant to a provision in that code (case no. 002/11).
20.  On 7 April 2011 the applicant’s counsel sent a letter to Hegnar Online stating the applicant’s intention to instigate civil proceedings against Hegnar Online and the editor, Mr H., because comments 1 to 3 had been defamatory and contrary to Article 246 of the Penal Code (see paragraph 43 below). For the defamation she would claim redress under section 3-6 of the Compensation Act (see paragraph 44 below), of amounts limited to 250,000 Norwegian kroner (NOK - today approximately 25,000 euros (EUR)) from the company Hegnar Online and NOK 25,000 (approximately EUR 2,500) from Mr H. personally.
The applicant’s counsel argued that comments 1 to 3 had constituted sexual harassment beyond what a publicly known person had to endure and that it was settled law that such derogatory comments, discriminatory to women, were not protected by Article 10 of the Convention under any circumstances. Reference was made to the case of Tammer v. Estonia (no. 41205/98, ECHR 2001‑I).
21.  Hegnar Online and Mr H.’s counsel responded in a letter of 28 April 2011. The counsel stated that the company Hegnar Media AS, into which Hegnar Online had by then been incorporated, had a procedure that made it simple to complain about forum comments that anyone might consider inappropriate. Next to each post was a link which could be clicked on in order to warn the company (“warning button”). When the company received such complaints, this usually led to deletion of the comment. Between 1,800 and 2,000 comments per month were deleted on the basis of such complaints. In addition, the company had moderators who on their own initiative removed comments in breach of the forum guidelines. Comments 1 and 2 had been removed immediately – within eight minutes of the applicant’s complaint – and comment 3 had been removed on the initiative of a moderator.
In the letter it was further stated that Hegnar Media AS apologised for three of its users having made comments with sexual content, directed at the applicant, but that it did not consider itself liable to pay compensation. The three comments had had nothing to do with the company’s journalistic work or editorial responsibility; they had not been uttered or produced by the company, nor had it authorised them for publication. Furthermore, the comments in question had not been defamatory and had been removed as soon as the company had become aware of them. Although the company did not consider itself legally liable, it offered the applicant NOK 10,000 (today approximately EUR 1,000) for the inconvenience she had suffered because of the comments.
22.  On 4 May 2011 the applicant instigated civil proceedings before the Oslo City Court (tingrett) against Hegnar Media AS and the editor, Mr H., for defamation. As previously stated in the letter to Hegnar Online (see paragraph 20 above), she claimed that her honour had been infringed because of comments 1 to 3 and that she was therefore entitled to redress. She maintained, inter alia, that the conclusion of the Press Complaints Commission (see paragraph 19 above) supported her argument that the defendants had exactly the same editorial responsibility for the comments as if they had been letters from readers printed in a newspaper.
23.  The City Court heard the case from 19 to 20 December 2011. The parties attended with their counsel and one witness was heard. During the proceedings the applicant invoked Articles 246 and 247 of the Penal Code (see paragraph 43 below), in conjunction with section 3-6 of the Compensation Act (see paragraph 44 below). The defendants argued principally that the situation at hand was governed by section 18 of the E-Commerce Act (see paragraph 45 below). They also maintained that Articles 246 and 247 of the Penal Code were inapplicable since they required intent (forsett) on the part of the wrongdoer. In the case at hand the defendants had not even been aware of the comments in question, and the principles relating to editorial responsibility were in any event irrelevant. In any case, editorial responsibility could not apply to the situation before the editor had become aware of the comments, and in the instant case they had been removed as soon as Mr H. had become aware of them.
24.  On 4 January 2012 the Oslo City Court ruled in favour of the defendants. It considered that the three comments had not amounted to unlawful defamation as they had been incapable of offending either the applicant’s honour or reputation.
25.  As to comment 1, the City Court noted that the comment had been tasteless and vulgar, but had not in itself been an accusation (beskyldning) of promiscuity or some sort of immoral behaviour. In the City Court’s view, it could not harm the applicant’s reputation (omdømme) under Article 247 of the Penal Code (see paragraph 43 below). Furthermore, it had not expressed disdain or disapproval of her, so could not harm her honour (æresfølelse) under Article 246 of the Penal Code (ibid.).
26.  With respect to comment 2, the City Court again found that it had been tasteless and “unserious”. An anonymous comment of this sort could not, however, harm the applicant’s reputation or honour. It might be considered to be ridicule, but had not exceeded the threshold over which ridicule would be unlawful. The City Court also had regard to the fact that “Theme of the day” was a marginal forum frequented mostly by anonymous people. It was generally unserious and, according to the City Court, most readers would find that the comments said more about those posting them than about the people mentioned in the comments. The City Court expressed that it completely understood that the applicant found it unpleasant that anonymous persons had posted “sleazy” remarks about her on the Internet. However, based on an overall assessment, the City Court concluded that comment 2, either alone or in conjunction with comment 1, had not been capable of harming the applicant’s honour.
27.  Turning to comment 3, the City Court said that this was again a comment that most people would consider inappropriate, tasteless and vulgar. It had to be interpreted as an allegation that the applicant had had a sexual relationship with a person nicknamed trønderbjørn. No further information about who or what kind of person that might be had been given either in the forum or during the civil case. The court found that an anonymous comment indicating that the applicant had had a sexual relationship with an unidentified person could not harm the applicant’s reputation or honour. There had been nothing expressly negative in the comment. Moreover, since the writer had been anonymous there had been no reason to take him or her seriously.
28.  The City Court also made an overall assessment of the three comments viewed as a whole, but found that they still had not amounted to unlawful defamation. It remarked that several of the other comments in the forum threads in question, that the applicant had not complained about, could possibly be defamatory, as had also been indicated by the defendants briefly during the hearing, but since the applicant had not complained about any other comments, the City Court could not decide on their lawfulness.
29.  The applicant was ordered to pay the defendants’ litigation costs of 225,480 Norwegian kroner (NOK - approximately 24,650 euros (EUR)). The City Court stated that it was in no doubt as to the result of the case and noted that the applicant had turned down the defendant’s offer of settlement (see paragraph 21 above). The defendants had claimed NOK 290,880 (approximately EUR 30,615), an amount which the City Court considered exceeded what was reasonable and necessary under the relevant provisions of the Dispute Act (see paragraph 47 below).
30.  On 31 January 2012 the applicant appealed against the City Court’s judgment to the Borgarting High Court (lagmannsrett). Apart from maintaining that the three statements (comments 1 to 3) had amounted to unlawful defamation, she submitted that her right to privacy (privatlivets fred) as enshrined in Article 390a of the Penal Code, and her rights under the general principles concerning the protection of personality (det ulovfestede alminnelige rettsvern for personligheten) had been breached. Moreover, she argued that the comments had been in breach of section 8a of the Gender Equality Act and that under section 17 of that Act compensation was payable (see paragraph 46 below). Lastly, she submitted that the defendants had been awarded an amount of litigation costs exceeding what had been necessary.
31.  The High Court heard the case on 10 and 11 September 2013. The parties attended and gave evidence, and one witness was heard. The judgment was delivered on 24 October 2013.
32.  The High Court stated at the outset of the judgment that there had been an extensive coverage of the inheritance case both by the Hegnar Group and other media. The coverage had undoubtedly been a strain on the applicant, but was not the topic of the proceedings. It did however form a background to the case and explained why the applicant had come into the spotlight and subsequently been the topic of anonymous statements on the debate forum related to Hegnar Online.
33.  The High Court went on to state that it was of the view that the applicant had had good reason to react to the statements on the Hegnar Online forum. The statements had been unserious and sexually loaded. Accordingly, she had by way of a complaint to the Press Complaints Commission achieved a declaration that Hegnar Online had breached the code of conduct for journalists because the content of the forum threads had exceeded what she had had to accept and that Hegnar Online should on its own initiative have discovered and removed the comments more quickly than had happened.
34.  Turning to the question of liability to pay compensation, the High Court stated that this was a different question to that considered by the Press Complaints Commission. At this point the High Court had reached the same conclusion as the City Court had, but on different grounds. The City Court had considered each of the three comments in detail and concluded that, although inappropriate, unserious and tasteless (“usaklige, useriøse og smakløse”), they did not fall within the scope of Articles 246 and 247 of the Penal Code (see paragraphs 24-28 above and 43 below). The High Court stated that it shared the City Court’s view with regard to the lack of seriousness, but deemed it unnecessary to assess the three comments against the provisions on defamation.
35.  Instead, the High Court proceeded on the basis that the applicant’s claim for compensation could in any event not succeed unless the defendants had acted with sufficient culpability. It would be decisive whether such culpability had been demonstrated by Hegnar Online and Mr H. not having done enough to discover and thereafter remove the impugned comments.
36.  The High Court further stated that one characteristic of posts on the type of debate forum in question, and also of comments on editorial content posted online, was that they were posted in real time without any prior censorship being possible. This meant that controls needed to be carried out subsequently, regardless of whether it concerned content subject to editorial responsibility or a website with only user-generated content.
37.  With regard to the general system for monitoring content, the High Court noted that there were “warning buttons” on the website, which readers could click on in order to react to comments. Furthermore, the editorial staff had the task of monitoring content and removing comments on their own initiative. However, there were a very large number of posts on the forum as a whole, and the High Court presumed that only a few discoveries of content to be removed had been made at the relevant time.
38.  Turning to the three specific comments in question, the High Court noted that comments 1 and 2 had been posted on 6 and 8 November 2010 respectively. The applicant had been notified by others of the comments, and had not read them herself on the website. The editorial staff had been notified of the two comments by email on 17 November 2010, and had responded thirteen minutes later that they had been removed. This had clearly been an adequate reaction. However, the High Court discussed whether the letter from the applicant’s counsel to the Press Complaints Commission on 8 November 2010 (see paragraph 10 above) implied that Mr Hegnar should have initiated a deletion process at that time. Having regard to the fact that the letter was formally made in a different context, namely the pending complaint against Kapital (see paragraph 6 above), and did not contain any request that the comments be removed, the High Court found it appropriate that Mr Hegnar had only considered the letter as a document in the Kapital case.
39.  With respect to comment 3, this had been posted on 30 November 2010. On 3 December 2010 staff at Radio Norge had informed the applicant’s counsel, who had contacted Hegnar Online on 6 December 2010. Hegnar Online had by then already looked into the matter, as it had received a similar notification from Radio Norge on 3 December 2010, and had on that date noticed that the comment had already been deleted, presumably by a moderator at Hegnar Online. As this comment had, thus, rapidly been deleted of the staff’s own motion, there was nothing to suggest liability on the part of Hegnar Online.
40.  The High Court upheld the City Court’s decision on litigation costs before the City Court and awarded the defendants NOK 183,380 (approximately EUR 20,050) for their costs before the High Court. It remarked that the case had been clear and that neither considerations on the parties’ welfare nor relative strength (see paragraph 47 below) could justify not awarding the winning party costs. The defendants had claimed NOK 231,980 (approximately EUR 24,416), but the High Court found that as their counsel charged a high hourly rate, appropriate for a specialist lawyer, this should have been reflected in a lower amount of hours.
41.  On 22 November 2013 the applicant appealed against the High Court’s judgment to the Supreme Court (Høyesterett). She contested the High Court’s assessment that the defendants had acted with sufficient care and alleged that the High Court had erred in law as its reasoning had not been clear with respect to the standard of care required, notably whether it had proceeded on the basis that negligence would suffice for liability, or whether the establishment of gross negligence had been necessary. She also contested the High Court’s assessment of evidence concerning Mr Hegnar’s dealing with the letter of 8 November 2010 addressed to the Press Complaints Commission. The applicant pointed out that Mr Hegnar had written an editorial in Kapital on 19 November 2010, making remarks about how the applicant had complained about comments on the forum (see paragraph 14 above). Furthermore, the applicant argued that the High Court had wrongfully proceeded on the basis that the standards for the moderation of websites with user-generated content had been more lenient in 2010 than at the time of the High Court’s judgment. Lastly, she appealed against the High Court’s decision on litigation costs. The defendant’s counsel charged an hourly rate of up to NOK 3,900 (approximately EUR 410), which was so high that there would be a chilling effect on individuals’ willingness to challenge violations of Article 8 of the Convention.
42.  On 7 February 2014 the Supreme Court’s Appeals Leave Committee (Høyesteretts ankeutvalg) refused the applicant leave to appeal against either the High Court’s judgment as a whole or against its decision on legal costs.