CEDH · CASELAW;CLIN;ENG — 22 mars 2016

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Portugal (no. 2) - 48718/11 Judgment 22.3.2016 [Section IV] Article 10 Article 10-1 Freedom to impart information Conviction of journalist for broadcasting recording of court hearing without permission: violation Facts – In November 2005 a television news programme broadcast a report by the applicant about a court case. Audio extracts from the recording of the hearing by the court to which subtitles had been added were broadcast as part of the report. For this retransmission, the voices of the three judges sitting on the bench and of the witnesses were digitally altered. Following the broadcast, the president of the chamber which had tried the case submitted a complaint to the prosecutor’s office on the grounds that permission had not been given for transmission of audio extracts from the hearing or of film footage of the courtroom. The persons whose voices had been broadcast did not, however, complain to the courts of an infringement of their right to speak. The applicant was ordered to pay a fine of EUR 1,500. Law – Article 10: The applicant’s conviction had amounted to an interference with her right to freedom of expression. The interference was prescribed by law and the aims relied on by the Government corresponded to the legitimate aims of maintaining the authority and impartiality of the judiciary and protecting the reputation and rights of others. The impugned report described judicial proceedings which had culminated in the criminal convictions of several defendants. The applicant’s actions had been intended to expose a miscarriage of justice which she believed to have occurred in respect of one of the convicted individuals. It followed that the report had addressed a matter of public interest. Journalists could not, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 afforded them protection. The fact that the applicant had not acted illegally in obtaining the recording was not necessarily a determining factor in assessing whether or not she complied with her duties and responsibilities. In any event, she had been in a position to foresee that broadcasting the impugned report was punishable under the Criminal Code. That being said, when the impugned report was broadcast the domestic case had already been decided. Thus, it was not obvious that broadcasting the audio extracts could have had an adverse effect on the proper administration of justice. Furthermore, the hearing had been public and none of the persons concerned had complained of an infringement of their right to speak, although this remedy had been open to them under the domestic law. It was primarily up to them to ensure respect for that right. Additionally, the voices of those taking part in the hearing had been distorted in order to prevent them from being identified. Equally, Article 10 §   2 of the Convention did not provide for restrictions on freedom of expression based on the right to speak, as that right was not afforded the same protection as the right to reputation. Accordingly, the second legitimate aim relied upon necessarily assumed less importance in the circumstances of the case. It was unclear why the right to speak ought to prevent the broadcasting of sound clips from the hearing when, as here, it was public. Lastly, although the amount of the fine might appear small, this did not detract from its dissuasive effect, given the severity of the potential penalty. In consequence, although the reasons prompting the conviction were relevant, they had not been sufficient to justify such an interference with the applicant’s right to freedom of expression. Conclusion : violation (six votes to one). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; EUR 1,500 in respect of pecuniary damage.   © 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