A Facebook post about an advocate's previous criminal convictions constitutes punishable harassing conduct

A young woman published Facebook post stating that a named advocate had previously been convicted of sexual offenses. The oldest and most serious conviction was 31 years old, while the most recent, and considerably less severe,  had been handed down just over 15 years prior to the post. The post inaccurately claimed that the oldest conviction involved “sexual assault” of minors, but this was later corrected to “sexual activity". The advocate's name was also replaced with “Xxxx,” and a photo of him was included with his face blurred.

The majority of the Supreme Court upheld the Court of Appeal’s application of the law, ruling that the woman should be convicted of harassing conduct under section 266 of the Penal Code. Reference was made to the purpose of the post, which was to undermine the trust in the aggrieved party as an advocate, the fact that it was published on Facebook, and the impact on the aggrieved party.

The majority held that the decriminalisation of defamation under the Penal Code 2005 does not preclude criminal liability in this case. What renders the statement punishable is not its semantic content, but rather its function and intent as a deliberate and reckless violation of another person’s peace. The majority subsequently found that punishment is compatible with the right to freedom of expression under the Constitution and the ECHR.

One justice believed the post was not punishable, holding that allegations of serious criminal conduct lie at the heart of reputational harm, which has been decriminalised. In the minority’s view, the purpose of the statement and its impact on the aggrieved party are secondary in cases of reputational harm.

The Supreme Court unanimously found grounds to award aggravated damages of NOK 50,000.

The judgment is significant for the interpretation of section 266 of the Penal Code and the relevance of freedom of expression.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Areas of law: Criminal law - harassing conduct, freedom of expression, the right to private life

Justices: Webster, Falkanger, Stenvik, Lund, Poulsen

Key paragraphs: 21, 29, 37, 41, 56, 67, 74, 76