This post analyses Einarsson v Iceland, a defamation case in which a celebrity sued an Instagram user (‘X’) for calling them a ‘rapist’ on social media. The judgment has worrying implications for discussions of rape allegations.

Background

Egill Einarsson, an Icelandic media personality, was reported to the police by two women alleging rape and sexual assault. In November 2012, the public prosecutor discontinued both cases due to insufficient evidence and low likelihood of conviction.

Later that month, a magazine published an interview with Einarsson, with his face on the front cover and discussions of the allegations. Later that day, X uploaded an edited version of the cover photo on their personal Instagram profile, with the caption ‘Fuck you rapist bastard’ (‘the comment’). The following day, another newspaper published an online article on the controversy, which included this Instagram post (with X’s comment) and a statement from Einarsson.

Einarsson sued ‘X’ for defamation and was unsuccessful both at the District Court and Supreme Court (2:1) (‘the Icelandic courts’). In their contextual assessment (see below), they ruled that the comment was ‘a case of invective’ – an insult – and should be seen as a value judgement, not a factual statement that Einarsson was guilty of committing rape [16].

Judgement of the European Court of Human Rights

On the 7^th November 2017, the European Court (‘the Court’) ruled that the Icelandic courts had not struck a fair balance and that Einarsson’s Article 8 right to privacy, via his reputation, had been violated.

The Court assessed the context: that the comment was part of a debate of general interested about a well-known person; that Einarsson had made ‘provocative, if not derogatory’ comments against one accuser; and that his general attitudes towards women and their sexual freedom ‘attracted attention and controversy’ [43]. They also noted that the photo was publicly accessible on Instagram, saying that the internet enhances access to news but poses a greater harm to privacy than the press.

Despite this, the Court focused on the factual context of the criminal proceedings being discontinued and ruled that this had not adequately been taken into account. They preferred to see the term “rapist” as ‘objective and factual in nature’, disliking the value judgement assessment, and that in either case the Icelandic courts ‘failed to explain sufficiently the factual basis that could have justified using the term’ [51-52]. The Court noted the usual margin of appreciation for both this assessment and striking the balance, saying that ‘strong reasons are required’ to substitute their view of domestic courts [38].

Analysis

The Court’s disagreement with the Icelandic courts is striking. The Icelandic courts were aware that the case had been dropped, yet the Court simply states that the factual basis had not been justified without explaining why they thought this had not been adequately considered. Further, there was no exploration of whether there could be a sufficient factual basis, which would give useful guidance for future cases.

Instead of exploring whether public testimony and reports to the police can be sufficient factual basis, the Court implicitly says that someone can only be called a rapist if they have been convicted as such. This is deeply worrying: clearly there are many rapists who have not been convicted, as securing a rape prosecution is difficult and the majority are not even reported. Nor was there recognition of the importance of free expression in discussing rape allegations.

Discussion of the Instagram context was also lacking, such as how many followers ‘X’ had (only 102), that most users see Instagram as a private sphere to communicate with friends, or that X’s post only received significant attention was because it was republished by a media outlet.

The Court’s judgment has significant and worrying implications. It is already difficult to make allegations of sexual violence, whether to the criminal justice system or the media. Many perpetrators are protected by social power and wealth, such as in Hollywood or in (the UK) Parliament, and this includes the possibility (and actual use of) defamation lawsuits. This ruling increases this possibility, both by shifting the balance more towards the privacy of people accused of rape and with its extension to private sphere social media posts.