ECHR judgment “Haldeman and others against Switzerland”, hidden cameras and freedom of expression

Facts

The facts which led to the judgment “ Haldeman and others against Switzerland ” delivered by the European Court of Human Rights on February 24, 2015 can be succinctly summarized as follows.

Swiss journalists carry out a report on insurance, and on the abuses known in the sector.

As part of this report, they interview an insurance broker, without notifying him that a camera is spinning.

At the end of the interview, the editor-in-chief enters the room and informs him that he was filmed on a hidden camera. The latter replies that he expected it. However, he refuses to react to the interview he has just given.

After pixelating the face and changing the voice of the broker in question, the journalists decide to include this interview in their report.

The broker then brought proceedings before the courts of Zurich in order to prevent the broadcast of this report. The court rejects his request.

The report is finally broadcast.

Several (criminal) procedures follow and in fine the journalists are condemned.

They then decide to seize the European Court of Human Rights for violation of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms relating to freedom of expression (which also includes the freedom of information):

“Article 10 - Freedom of expression

  1. Everyone has the right to freedom of expression. This right includes the freedom of opinion and the freedom to receive or impart information or ideas without interference from public authorities and regardless of frontiers. This article does not prevent States from subjecting broadcasting, film or television undertakings to a licensing regime.
  2. The exercise of these freedoms involving duties and responsibilities may be subject to certain formalities, conditions, restrictions or sanctions provided for by law, which constitute measures necessary, in democratic , for national security, for territorial integrity. or public safety, the defense of order and crime prevention, the protection of health or morals, the protection of the reputation or the rights of others, to prevent the disclosure of confidential information or to guarantee the authority and impartiality of the judiciary ”.

Thanks to the appeal of Swiss journalists, the European Court of Human Rights is seized for the very first time of the question of whether the hidden camera technique complies with the Convention for the Protection of Human Rights and Fundamental Freedoms.

The reasoning of the European Court of Human Rights

The European Court of Human Rights (hereinafter “the Court”) begins by finding that the conviction of Swiss journalists constitutes “interference by public authorities” with the right of these journalists to freedom of expression.  

However, recalls the Court, such interference is admissible only if it fulfills the conditions of Article 10, §2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the Convention”). In other words, such interference is permissible only if:
 

  • it is provided for by national law;
  • its purpose is to meet one of the legitimate aims provided for in Article 10, §2, of the Convention;
  • It is necessary in democratic.

As to the first condition , namely that the interference by the public authorities must have been provided for by trademark registration for service, the Court reiterates that the interference in question must find a basis in national law and, moreover, that this basis must be accessible to litigants and predictable in its effects. The quality of domestic law is therefore important in this regard.

The Court then noted that, in this case, the conviction of the journalists was based on Articles 179 bits and 179 term of the Swiss Penal Code, which constitute texts accessible to litigants.

More complex is the question of the foreseeability of these articles 179 bits and 179 term of the Swiss Criminal Code. Indeed, according to journalists, these provisions in no way sanction the use of hidden cameras. According to them, these provisions are therefore not predictable in their effects. The Court considers, however, that these provisions were indeed foreseeable in their effects since:

“(…) The applicants, journalists and editors, could not be unaware, as professionals of television programs, that they were exposing themselves, using a hidden camera, without the consent of a person object of a report and without his authorization to broadcast this report, to a criminal sanction ” (paragraph 39 of the judgment).

This is sufficient, in the eyes of the Court, to consider that the interference of the public authorities with the right to freedom of expression of journalists was indeed provided for by law (and foreseeable) within the meaning of Article 10, § 2, of the Convention.

As to the second condition, namely that the interference by the public authorities must have as its object one of the legitimate aims provided for in Article 10, §2, of the Convention, the Court is very brief: the conviction of the journalists aimed to protect the rights and reputation of others, namely the broker's right to his own image, his own word and his reputation.

“The Court noted that the image and voice of the broker were recorded without his knowledge and then broadcast against his opinion, admittedly in an anonymized form but in a pejorative manner, updating the erroneous professional advice disclosed by the broker, in a television program with a large audience.

 The Court therefore considers that the contested measure was capable of aiming at the protection of the rights and reputation of others, namely the broker's right to his own image, to his own word as well as his reputation” (paragraphs 42 and 43 of the judgment).
 

The second condition imposed by Article 10, §2, of the Convention, to justify a limitation of the right to freedom of expression, is therefore also satisfied in the eyes of the Court.

As to the third condition, namely that the interference by public authorities must be necessary in democratic, the Court begins by recalling its conception of freedom of expression:

“Freedom of expression constitutes one of the essential foundations of democratic, one of the essential conditions for its progress and for everyone's development. Subject to paragraph 2 of article 10, it applies not only to “information " or " ideas " received with favor or considered harmless or indifferent, but also to those which offend, shock or worry : this is what pluralism wants. , tolerance and the spirit of openness without which there is no " democratic society        ". As enshrined in Article 10, accompanied by exceptions which however call for a narrow interpretation, and the need to restrict it must be convincingly established .
 

The Court then recalls the fundamental role that the press has to play in democratic (watchdog role):

“The Court has, moreover, repeatedly stressed the essential role played by the press in democratic. While the press must not cross certain limits, particularly concerning others, it is nevertheless incumbent on it to communicate, in accordance with its duties and responsibilities, information and ideas on all questions of general interest. In addition to its function of disseminating information and ideas on such matters, there is the right of the public to receive them. If it were otherwise, the press would not be able to play its essential role of “watchdog”

Notwithstanding the fundamental importance of freedom of expression (which is the pillar of democratic) and the essential role of the press in democratic (watchdog role), the Court specifies that journalists have nevertheless duties and responsibilities (in short: they cannot do anything to assume this role):

“It should also be remembered that any person, even a journalist, who exercises his freedom of expression, assumes“duties and responsibilities”the extent of which depends on his situation and the technical process used. Thus, despite the essential role of the media in democratic, journalists cannot in principle be released, by the protection afforded them by Article 10, from their duty to respect ordinary criminal laws. Paragraph 2 of Article 10 also sets the limits for the exercise of freedom of expression, which remain valid even when it comes to reporting in the press on serious questions of general interest.

The Court then notes that the examination to be carried out is, in substance, as follows (paragraph 48 of the judgment): have the national authorities (in this case: the Swiss courts) struck the right balance between the freedom of expression which journalists enjoy on the basis of Article 10 of the Convention and the right to respect for private life which the broker enjoys under Article 8 of the Convention?

There is, in fact, a conflict between two fundamental rights guaranteed by the Convention, respectively in Articles 10 and 8.

To resolve this question, the Court examines whether the report produced by the journalists concerned a subject of general interest. Indeed, an interference with its not easily accepted by the Court when it comes to matters of general interest (paragraph 59 of the judgment).

In the eyes of the Court, the subject dealt with by the journalists was indeed of general interest, since it touched on consumer rights:

“The Court observes from the outset that the subject of the report produced, namely the poor quality of the advice delivered by private insurance brokers, and therefore a question of protection of consumer rights arising therefrom, concerned a debate which was of great importance. Very important public interest” (paragraph 56 of the judgment).

The Court then turns to the fact (I) that the broker was filmed without his knowledge; (ii) that he is not a public figure; (iii) that he could reasonably believe that the interview he gave was private.

According to the Court, these circumstances are not sufficient to make the broker's right to privacy triumph over journalists' right to freedom of expression over a subject of general interest, in particular because the report produced by the journalists was not focused on the person of the broker, but much more on certain business practices - apparently - common in a professional sector. In other words, the broker was not personally targeted or targeted. Consequently, “the Court considers (…) that the invasion of the broker's privacy is less significant than if the broker had been targeted in person and exclusively by the report” (paragraph 60 of the judgment).

It remains, according to the Court, to examine the method of obtaining the information and its veracity. In fact, the Court recalls that the freedom of expression guaranteed by Article 10 of the Convention “with regard to reports on questions of general interest, is subject to the condition that the persons concerned act in good faith on matters of general interest. The basis of accurate facts and provide "reliable and precise" information in compliance with journalistic ethics.

In other words, an interference by Swiss courts in the freedom of expression of journalists could be justified if they have not acted in good faith and / or if the facts reported by these journalists are erroneous or have been obtained. Contrary to journalistic ethics.

In this regard, the Court notes in the first place that the use of hidden cameras in Swiss law is subject to ethical conditions which are not unanimous (proof is, according to the Court: the journalists were acquitted first instance). Journalists must therefore, according to the Court, “benefit from any doubt as to their willingness to comply with the ethical rules applicable in the present case, as regards the method of obtaining information” (paragraph 61 of the judgment).

The Court then noted that the facts reported by the report, and obtained with a hidden camera, were not contested. Their veracity cannot be questioned.

The Court concludes as follows:

  • the report was particularly pejorative;
  • the broadcast of this report was likely to infringe the broker's right to his privacy (many viewers having read it);
  • however, the broker's face has been pixelated; his modified voice; and his clothes were not particularly distinctive;
  • therefore “the interference in the private life of the broker, who has given up expressing himself on the interview, is not so serious that it must obscure the public interest in informing alleged poor workmanship in insurance brokerage ”. 

In other words, in view of the measures taken by journalists to minimize the invasion of the broker's privacy and in view of the general interest in the dissemination of information obtained with a hidden camera, interference by public authorities is not was not justified in democratic. 

In conclusion

Everything is always a question of species and facts, especially when it comes to balancing the right to freedom of expression enshrined in Article 10 of the Convention against the right to respect for private life protected by the article 8 of the same Convention.

The fact remains that it is particularly interesting that under the terms of this judgment the European Court of Human Rights has ruled in favor of the hidden camera technique.

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    27 Aug 2019
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