Credit: CherryX per Wikimedia Commons
On February 24, 2015, the European Court of Human Rights issued its judgment in the case of Haldimann and Others v. Switzerland, concerning journalists’ use of secret recordings to report on malpractice in the insurance industry. See ECtHR, Haldimann and Others v. Switzerland, no. 21830/09, Judgment of 24 February 2015 (French only). This was the first time the Court reviewed journalists’ use of hidden cameras to provide information on a subject of general public interest, where the person was not filmed in a personal capacity but as a representation of a particular professional category. [Human Rights Europe]
The Court held that the State had violated Article 10 (freedom of expression) of the European Convention on Human Rights by convicting and fining the journalists, reasoning that the public interest in receiving information on life insurance brokers’ bad practices outweighed the violation of privacy to an individual broker filmed as a representative of the industry. Moreover, the Court regarded the criminal court’s decision to fine the journalists as a restriction on media’s freedom of expression. [ECtHR Press Release] The judgment confirms that journalists may use undisclosed or undercover recordings in the interest of reporting stories of public interest, so long as consideration is given to the privacy interests of the individuals recorded.
Facts and Procedural Background
Four Swiss national journalists prepared and broadcast a television documentary in February 2003 using hidden cameras to investigate allegations of malpractice among life insurance brokers. In February of 2003, one journalist posed as a customer and met with an insurance broker offsite from his usual place of business. The journalists used two hidden cameras to record and transmit the interview into a separate room where another journalist and an insurance specialist were watching. Afterwards, the hidden journalist introduced herself to the broker and invited him to comment on the interview, but he refused to do so. Parts of the recording were broadcast the following month, with the broker’s face and voice disguised. [ECtHR Press Release]
In 2007, the journalists were convicted of violating the broker’s privacy by using a hidden camera to make a recording and were fined for their actions. They appealed to the Federal Court which upheld the conviction, finding that the journalists could have used an alternative method to inform the public of bad brokerage practices that would have been less intrusive of the insurance broker’s privacy interests. In February of 2009, however, the High Court of the Canton of Zurich acquitted the journalists of one charge and reduced their fines. [ECtHR Press Release]
In April of 2009 the journalists filed their case with the European Court of Human Rights, alleging that their fines were a disproportionate interference in their right to freedom of expression under Article 10 of the European Convention on Human Rights. [ECtHR Press Release]
Article 10 provides that the right to freedom of expression “shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
The Article 10 Violation
The Court established six factors to consider in weighing the freedom of expression against the right to private life when determining whether there is a violation of Article 10: contribution to a discussion of public interest; how well-known the person-subject is and the topic of the report; that person’s previous behavior; the method used to obtain the information; “the veracity, content, form and repercussions of the report”; and the penalty. [ECtHR Press Release]
In this case, the journalists’ exposure of insurance brokers’ alleged malpractice with unknowing consumers contributed to discussions in general public interest. The insurance broker was not particularly well-known, nor was he the subject of the documentary. In this instance, the insurance broker was a representative of the industry of insurance brokerage and bad practices, but the documentary was not about this man himself. The journalists’ method of using hidden cameras was used in good faith and in accordance with the ethics of journalism. [ECtHR Press Release] The accuracy of the content was not been challenged and the journalists disguised the broker’s face and voice. The Court also found that the penalty imposed was disproportionate to the journalists’ actions, especially considering that allowing this penalty discouraged the media’s freedom of expression. [ECtHR Press Release]
Other Article 10 Cases
In past cases, the Court has determined Article 10 violations by weighing the proportionality of the penalty and the impact on public interest in each case. See ECtHR, Factsheet – New Technologies (February 2015); ECtHR, Factsheet – Protection of Journalistic Sources (June 2014).
The European Court of Human Rights has held that journalistic source protection is one of the necessary factors to maintaining freedom of the press. In the 1996 case Goodwin v. the United Kingdom, the Court noted the importance of free press in protecting the public interest and found that violations of Article 10 of the Convention could not be justified unless there was an overriding factor that was more important to the public interest. See ECtHR, Goodwin v. the United Kingdom, no. 17488/90, Judgment of 27 March 1996. The Court also held in Nagla v. Latvia that the interest of an investigation in securing evidence must be balanced against the public interest of protecting journalists’ freedom of expression. [ECtHR Press Release: Nagla v. Latvia]
In Perrin v. the United Kingdom, the Court held that an individual’s freedom of expression was not violated when he was sentenced to 30 months of imprisonment for publishing obscene articles because the sentence was proportional to his crime and the conviction protected the public interest. See ECtHR, Perrin v. the United Kingdom, no. 5446/03, Judgment of 18 October 2005. The Court also considered the proportionality of penalties against journalists in Ashby Donald and Others v. France, in which it held that there was no violation of Article 10 when fashion photographers were convicted of copyright infringement for publishing photographs of a fashion show on the Internet, and the penalties of fines were proportional to the desired remedy. See ECtHR, Ashby Donald and Others v. France, no. 36769/08, Judgment of 10 January 2013.
Additional Information
For more information about the European Court of Human Rights and the European human rights system, visit IJRC’s Online Resource Hub.