The leeway of investigative journalism

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Published 03 August 2022
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The trial between the Norwegian newspaper Dagens Næringsliv and a businessman who ran a loan business in the grey market has strengthened the legal protection of Norwegian investigative journalism. Along the way in the case, the media's right not to hand over unpublished material to outsiders was also fortified and strengthened.

By Halvard Helle and Severin Slottemo Lyngstad

In the summer of 2014 Dagens Næringsliv started work on a series of reports on a Norwegian businessman and his loan and business activities. The newspaper articles dealt with both an extensive lending activity in the grey market and corruption charges in connection with business development in Rjukan municipality.  

Dagens Næringsliv's reports on the businessman started with a comprehensive article that put a critical focus on his lending business. The report was titled "Lånehaien" (EN: "The Loan Shark"), and cited several examples where the man had given private loans to private individuals in a difficult position, against security in their homes and dwellings. The article later won the Skup Award, a Norwegian journalism prize awarded by the Norwegian Foundation for a Free and Investigative Press.

Dagens Næringsliv also wrote, in the autumn of 2014, an article titled "Reported for possible corruption attempts". The report cited a review in which it emerged that one of the businessman's companies had tried to recruit a municipal business manager to the company in exchange for providing commission based on how much municipal subsidies the company could receive. The article showed that as a result, the municipality had reported the company – which was controlled by the businessman – for possible corruption to the Økokrim. Økokrim chose not to investigate the case, and there was never any criminal case.

The businessman filed a lawsuit against Dagens Næringsliv claiming that the articles were defamatory and therefore demanding compensation and redress from the newspaper under Section 3-6a of the Damages Act. Prior to the proceedings in the District Court, the businessman withdrew the claim related to the "Loan Shark" article, so that only the case of the corruption review was left for consideration. 

The Norwegian Act relating to compensation in certain circumstances sec. 3-6a defines where liability will arise for statements that are "suitable for violating someone else's sense of honor or reputation". Under the second paragraph of the provision, a person will not be liable for such defamatory statements if those statements are deemed to be justified after "considering the reasons that justify freedom of expression". 

In assessing whether a statement is defamatory, there is no requirement that it has actually damaged the person's sense of honor or reputation, as long as it may be suitable for this. 

Dagens Næringsliv was acquitted in the Oslo District Court. The District Court concluded that the mention of the possible corruption attempt was defamatory, but that the newspaper was entitled to publish the article. The businessman was therefore not entitled to compensation. 

The businessman appealed to the Borgarting Court of Appeal. The Court of Appeal reached the same conclusion as the District Court. The Court of Appeal first had to decide whether the article was defamatory to the businessman. The Court of Appeal ruled that it was, emphasizing that information that a person is suspected of corruption is suitable to damage the person's sense of honor or reputation. In this context, the Court of Appeal pointed out that it was a municipality that had reported the matter, and that readers would therefore not think that the review was obviously unfounded.   

The Court of Appeal therefore considered that Dagens Næringsliv was justified in publishing the article, so that there was no basis for liability for damages, cf. Section 3-6a, second paragraph, of the Act relating to compensation in certain circumstances.

The Court of Appeal concluded that freedom of expression and the press had to outweigh the consideration of the businessman's sense of honor, and therefore found that there was no basis for liability. The Court of Appeal emphasized in particular that the article had a good factual basis and did not contain factual errors.

Furthermore, the Court of Appeal emphasized that the newspaper had been precise in its review, and did not make stronger accusations against the businessman and his company than the review gave grounds for. Dagens Næringsliv had no obligation on an independent basis to investigate whether the allegations were correct. The Court of Appeal pointed out that the case had considerable public interest and that general considerations therefore justified the publication of the article by Dagens Næringsliv. 

In the end, the Court of Appeal pointed out that the newspaper had exhibited good journalistic craftsmanship in the work on the article and that there were no press ethics violations.  

Dagens Næringsliv was therefore acquitted.  

The businessman appealed the decision of the Court of Appeal to the Supreme Court. At the end of June, the Supreme Court's Appeals Committee decided not to hear the case. The Court of Appeal's decision is therefore final.  

This Court of Appeal's decision clarifies the application of the Act relating to compensation in certain circumstances. It is no longer any doubt that the press can mention reports of possible criminal offences, and could also link the review to a specific named person. However, the reservation here must be that the case has a strong public interest, as was the case here. In cases with limited public interest, the press should continue to be cautious about identifying suspects/persons charged in criminal cases in order to avoid prejudice, cf. the Code of Ethics of the Norwegian Press sections 4.5 and 4.7. However, there is a distinction between what is legally indemnity and violations of press ethics, where press ethics are likely to set stricter limits.  

The verdict shows that the press has a wide scope for reporting misconduct that has not yet been clarified or prosecuted, especially in cases where important societal interests are involved. In this case, the topic was possible corruption involving a municipal official from a private property developer, which was found to have a strong public interest.

Before the appeal proceedings at Borgarting Court of Appeal, the District Court also considered whether the businessman should be given access to emails that could shed light on the time DN learned of the review. DN opposed the businessman's petition, both because it was about unpublished material and because it could result in exposure of the newspaper's sources.

The Court of Appeal decided in favour of DN on this issue. The Court of Appeal ruled that the threshold for issuing orders to produce material or provide information covered by the source protection is particularly high in civil cases, and that this could have a dampening – and thus harmful – effect on the press' access to sources. This decision sets a clear limit on attempts to conduct source hunting along the way in a lawsuit filed against the media.

 

Lawyer Halvard Helle was a litigator for Dagens Næringsliv in Borgarting Court of Appeal and during the proceedings in the Supreme Court.