CEDH · CASELAW;CLIN;ENG — 24 février 2015

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Switzerland - 21830/09 Judgment 24.2.2015 [Section II] Article 10 Article 10-1 Freedom of expression Freedom to impart information Conviction of journalists for secretly filming and subsequently broadcasting for public-interest purposes interview with insurance broker: violation Facts – All four applicants are journalists. In 2003 the fourth applicant organised an interview with an insurance broker, posing as a potential customer. The interview was recorded without the broker knowing. He was subsequently informed of the recording, but refused to express any views on its content. Excerpts from the interview, in which the broker’s face was pixelated and his voice modified, were broadcast as part of a TV documentary on practices in the field of sales of life insurance products. All four applicants had been involved in preparing and broadcasting this documentary. The applicants were convicted of recording conversations of third persons and of recording conversations without authorisation, respectively. The first three applicants were given monetary penalties of twelve day-fines of between EUR 80 and EUR 290   and the fourth a suspended penalty of four day-fines of approximately EUR 30, coupled with a probationary period of two years. Law – Article 10: the interference in the applicants’ right to freedom of expression was prescribed by law and pursued the legitimate aim of protecting the rights and reputation of others, in this case the broker’s right to protection of his image, utterances and reputation. The Court had already dealt with cases concerning attacks on the personal reputation of public figures, establishing six criteria in order to weigh freedom of expression against the right to private   life: contributing to a debate of general interest, ascertaining how well-known the person being reported on was and the subject of the report/documentary, that person’s prior conduct, the method of obtaining the information, the veracity, content, form and repercussions of the publication, and the severity of the penalty imposed. The Court had also adjudicated cases of defamation related to individuals’ professional activities. However, the present case differed from those previous cases in that, firstly, the broker was not a well-known public figure and secondly, the impugned documentary was not intended to criticise the broker personally but to highlight specific commercial practices in his particular professional category. Therefore, the impact of the documentary on the broker’s personal reputation had been limited, which aspect had to be taken into account in applying the aforementioned criteria. The subject of the documentary, namely the poor quality of the advice provided by private insurance brokers and therefore a question of consumer rights protection in this sector, had concerned a debate of major public importance. Clearly, the broker who had been filmed without his knowledge was not a public figure. He had not consented to being filmed and could therefore have reasonably believed that the conversation had been private. Nevertheless, the documentary at issue had focused not on the broker himself but on specific commercial practices within a specific professional category. Furthermore, the interview had not taken place in the broker’s offices or any other business premises. Consequently, the interference in the broker’s private life was less serious than if the documentary had concentrated personally and exclusively on him. There had been no absolute prohibition in domestic law on the use of a hidden camera, which could be authorised under strictly defined conditions. Although the broker could legitimately claim to have been deceived by the applicants, they could not be accused of having acted deliberately in breach of professional ethics. They had not disregarded the journalistic rules laid down by the Swiss Press Council limiting the use of hidden cameras, but had in fact concluded that the aim of their documentary was such as to authorise the use such cameras. The Swiss courts had failed to reach a unanimous position on this question. Consequently, the applicants should be granted the benefit of the doubt regarding their desire to comply with the ethical rules applicable to the present case, as regards their method of obtaining information. The veracity of the facts as presented had never been disputed. The recording itself had only constituted a limited infringement of the broker’s interests, given that only a restricted group of individuals had had access to it. The decisive point in this case was that the applicants had pixelated the broker’s face so that only his hair and skin colour were still visible after this image transformation, and his voice had also been altered. Similarly, even though his clothes were visible, they had lacked any distinctive features, and the interview had not taken place in the broker’s usual business premises. Accordingly, the interference in the broker’s private life had not been serious enough to override the public interest in the information on alleged malpractice in the insurance brokerage field. Despite the relative leniency of the monetary penalties, the sentence passed was liable to deter the media from expressing criticism, even though the applicants had not been prevented from broadcasting their documentary. Conclusion : violation (six votes to one). Article   41: no claim made in respect of damage. (See also Axel Springer AG v. Germany [GC], 39954/08, 7   February 2012, Information Note   149 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes