CEDH · CASELAW;CLIN;ENG — 8 octobre 2013

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Italy - 30210/06 Judgment 8.10.2013 [Section II] Article 10 Article 10-1 Freedom of expression Imposition of suspended prison sentence on television producer for divulging confidential information belonging to State broadcaster: violation Facts – The applicant, as the producer and presenter of a satirical television programme, intercepted images of a row between a writer and a philosopher, during the recording of a programme to be broadcast on a State television channel. The presenter of that programme could later be seen complaining that she could not use the footage because the philosopher had not signed a document allowing it to be broadcast and acknowledging that the individuals concerned had been invited for the sole purpose of provoking an argument that would attract a large number of viewers. In 1996 the applicant broadcasted the images in order to denounce the real nature of television. The TV station lodged a criminal complaint, with an application to join the proceedings as a civil party, for fraudulent interception and disclosure of confidential communications. The philosopher also joined the proceedings as a civil party. In 2002 the applicant was ordered to pay the TV station and the philosopher damages, of which the amount was to be fixed in separate civil proceedings, and was given a suspended prison sentence of four months and five days, for the public disclosure of recordings in the TV station’s internal data-transmission system. In addition, the applicant was required to pay immediately, by way of an advance, 10,000   EUR to each of the civil parties. After the Court of Appeal dismissed his appeal in 2004 he appealed on points of law. In 2005 the Court of Cassation declared the offence time-barred and quashed the Court of Appeal’s judgment without remitting it. However, it upheld the order that the applicant was to compensate the civil parties and ordered him to pay the TV station’s legal costs. Law – Article 10: The applicant’s conviction had constituted an interference with his right to freedom of expression. That interference was prescribed by law and had the legitimate aims of protecting the reputation of others and of preventing the disclosure of information received in confidence. As to the necessity of the interference in a democratic society, the Court rejected the argument of the District Court and the Court of Cassation that the protection of communications based on a computer or data-transmission system precluded in principle any possibility of balancing against the exercise of freedom of expression. Even where such information was broadcast, there were a number of separate aspects to be examined, namely the interests at stake, the review by the domestic courts, the applicant’s conduct and the proportionality of the sanction. As regards the interests at stake, the applicant had argued that the broadcast footage concerned a subject of general interest, namely the function and “real nature” of television in modern society. The role of a State-owned television channel in a democratic society was a subject of general interest. The community could thus have a certain interest in being informed of the content of footage which illustrated a tendency to want to impress and entertain the public rather than to impart information of a cultural nature. However, the applicant had been seeking above all to stigmatise and ridicule individual conduct. If he had intended to start a discussion on a subject of paramount interest for society, other means had been available to him without involving any breach of the confidentiality of data communications. As to the review exercised by the domestic courts, only the Court of Appeal had raised the question of the conflict between the right to the confidentiality of communications and freedom of expression. It had attached particular weight to the social interest of the information thus broadcast, finding that it could not be regarded as of “paramount” interest. The Court was of the view that the analysis had not been arbitrary and had relied on the criteria established by the Court’s case-law. As regards the applicant’s conduct, he could not have been unaware, as a media professional, that the impugned recording had been made on a channel reserved for the internal use of the television station, or that, consequently, the fact of broadcasting it would breach the confidentiality of that State-owned TV station’s communications. Accordingly, the applicant had not acted in accordance with the ethics of journalism. In view of the foregoing, the Court found that his conviction had not constituted, in itself, a violation of Article 10. As regards the nature and severity of the sanctions imposed, in addition to the award of compensation, the applicant had been sentenced to four months and five days in prison. Even though it had been a suspended sentence and the Court of Cassation had found the offence to be time-barred, the fact that a prison sentence had been handed down must have had a significant chilling effect. In addition, the case in question, which concerned the broadcasting of a video whose content was not likely to cause significant damage, was not marked by any exceptional circumstance justifying recourse to such a harsh sanction. Consequently, on account of the nature and quantum of the sentence imposed on the applicant, the interference with his right to freedom of expression had not remained proportionate to the legitimate aims pursued. Conclusion : violation (six votes to one). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-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