Iceland’s Supreme Court has ruled entirely in favour of news outlet Stundin and media company Reykjavík Media in a media injunction case that has been ongoing since October 2017. Kjarninn reports that on Friday, the Supreme Court rejected all claims made by Glitnir HoldCo Ltd, the corporation that oversees the remaining assets of Glitnir bank. The first of these claims was that the journalists involved in the case should be legally compelled to share evidence that might have bearing on it, even if they might, in the course of their testimony, inadvertently reveal information about confidential sources. The company’s secondary claim was that the information reported on by Stundin and Reykjavík Media—information that was obtained from leaked bank documents—should be protected by bank confidentiality.
Friday’s ruling did not address the validity of the original injunction, which was struck down by the Court of Appeals, or Landsréttur, in October 2018. At the time, Landsréttur ruled that Stundin did not have to give up the Glitnir files. It also found that further reporting from the files couldn’t be forbidden. In its ruling, Landsréttur stated that Stundin’s coverage had focused on the business dealings of then prime minister and current Minister of Finance Bjarni Benediktsson, as well as people connected to him, and that this information was undeniably important to the public, especially leading up to elections. It was Glitnir HoldCo Ltd’s contention that the files could be used to report on individuals’ financial affairs which were not matters of public import, a claim that Landsréttur rejected. In that Glitnir HoldCo Ltd appealed Landsréttur’s decision to the Supreme Court, however, the injunction has remained in place since.
Protection of sources is of the highest importance
When the Supreme Court agreed to take the case in November 2018, it did so with the understanding that it would not be reviewing the validity of the initial media injunction, but rather the validity of Glitnir HoldCo Ltd’s assertion that Stundin and Reykjavík Media should not be allowed to use the information found in the leaked files in their reportage and should turn the Glitnir files back over to the holding company. Glitnir HoldCo Ltd’s claims were based on their belief that the data in the files should be protected by bank confidentiality.
The Supreme Court rejected all of the company’s claims. The main of these was that both the District Court and Landsréttur were wrong not to compel three known witnesses, all journalists for the media outlets, to answer questions related to the existence, content, and custody of the leaked bank documents. The company maintained that the courts’ decision not to do this stripped it of its legitimate right to evidence—namely, how the documents were leaked to the media in the first place. The company claimed that being denied this evidence was grounds for automatic dismissal of the first District Court case.
The Supreme Court rejected this claim, stating that compelling the journalists to testify put their source(s) at risk, since there was a significant likeliness that during such testimony, journalists would inadvertently share the names of, or information about, their source(s). With its ruling, then, the Supreme Court determined that the importance of protecting sources takes precedence in such cases.
Public figures necessarily have less right to privacy
On the matter of bank confidentiality, the Supreme Court found it significant that the original injunction was levied on October 16, 2017—just 12 days before parliamentary elections—which made it all the more important that media coverage related to elected officials should not be any more restricted than was absolutely necessary. It noted, however, that the outlets’ coverage was primarily related to the former prime minister’s dealings with Glitnir bank in the lead up to the failure of the Icelandic banks in 2008 and that the tenor and focus of the coverage has largely been the same from the beginning, even after the injunction went into effect.
In its judgement, the Supreme Court noted that is generally understood that individuals involved in public offices have less claim to privacy and confidentiality than private citizens. The role of the media in a democratic society must be considered in such cases, it continued, as must the relevance of the topics and dealings that were under discussion in this instance. “In light of the enormous overall impact that the banking collapse had on Icelandic society, it’s only natural that a reckoning like this would be conducted in the media and the public discussion that usually follows,” read the judgement. The business dealings of former prime minister Bjarni Benediktsson fall within the purview of open public debate, concluded the Supreme Court. Moreover, the business dealings of people close to Bjarni are also open to public discussion, as they are “so interwoven with” those of Bjarni’s that “they should not be separated.”
Finally, the court found that prior to the injunction, all media coverage of parties whose connection to Bjarni Benediktsson was not clear “immediately” was focused on parties who were publicly prominent in the run-up to, and wake of, the 2008 banking collapse and who, therefore, enjoy less privacy and confidentiality than the average private citizen. This was further evidenced by the fact that the media outlets’ coverage of these parties and their part in the 2008 banking collapse has not needed to be adjusted in any meaningful way following the injunction.
The damage is “irreversible”
Although today’s Supreme Court ruling was in the media’s favour, however, Stundin editors Ingibjörg Dögg Kjartansdóttir and Jón Trausti Reynisson and Reykjavík Media Editor-in-Chief Jóhannes Kr. Kristjánsson expressed dismay at the fact that although “Freedom Has Won,” in the end, the effect of the 522-day media injunction still had what they consider to be a seriously deleterious effect on public discourse. For one, it “…without a doubt, had a deterrent effect on people in our society who hold information or data that has significant relevance to the public, people who want to come to the media in the name of justice,” they wrote in a public statement on Facebook. They continued by saying that the possible legal costs associated with losing a case like this are not enough to deter unlawful injunctions from being made about topics that are of vital public importance. Regardless of the outcome of the case, they concluded, “[t]he fact remains that there has been a violation of the public’s right to information and when you really think about it, the right to free elections.”
Ingibjörg Dögg repeated this sentiment in an interview with RÚV, wherein she said that although she and her publication felt a sense victory with the ruling, the entire situation remained “incredibly sad.” Given the relevance of the information that was being published had to the 2017 elections, the damage that this injunction did is irreversible.