Case Law, Strasbourg: Haldimann v Switzerland, Conviction for secret filming breached Article 10 – Hugh Tomlinson QC

6 03 2015

kassensturz-emblemIn the case of Haldimann v Switzerland (Judgment of 24 February 2015, available only in French), the Second Section held that the conviction of four journalists for having recorded and broadcast an interview of a private insurance broker using a hidden camera was a breach of their Article 10 rights.  Although the case has been hailed as a “breakthrough for investigative journalism” it was, in reality, a fact sensitive decision from which no general conclusions can be drawn.

Background

The applicants, Ulrich Mathias Haldimann, Hansjörg Utz, Monika Annemarie Balmer and Fiona Ruth Strebel, are journalists. In February 2003 Ms Balmer, the editor of “Kassensturz”, a weekly TV programme on consumer protection, which has been a regular feature on Swiss German television (SF DRS) for many years, prepared a documentary on sales of life insurance products, against a background of public discontent with the practices used by insurance brokers.

She agreed with the editor responsible for the programme, Mr Utz, and Mr Haldimann, the editor-in-chief of SF DRS, to record interviews between customers and brokers, using a hidden camera to highlight insurance broker malpractice.

Ms Strebel, an SF DRS journalist posing as a customer, met with an insurance broker from company X on 26 February 2003. Two hidden cameras were placed in the room in which the interview was to take place, transmitting the recording of the conversation to a neighbouring room in which Ms Balmer and an insurance specialist had taken up position.

At the end of the interview Ms Balmer entered the room, introduced herself and explained to the broker that he had been filmed. The broker said that he had been suspected as much, and refused to comment when invited to do so by the editor. On 25 March 2003 sequences from the recording were broadcast on the “Kassensturz” programme, with the broker’s face and voice disguised.

On 5 November 2007 Mr Haldimann, Mr Utz and Ms Balmer were convicted of having made the recording using a hidden camera and given penalties of 15 day-fines of 350 Swiss Francs (CHF), CHF 200 and CHF 100 respectively, while five day-fines of CHF 30 were imposed on Ms Strebel.

The applicants appealed to the Federal Court, which ruled that, while acknowledging the major public interest of securing information on practices in the insurance field, which was liable to be weightier than the individual interests at issue, the journalists could have used a different approach less damaging to the broker’s private interests.

By a judgment of the High Court of the Canton of Zürich of 24 February 2009, the applicants were acquitted of the charge of violating the secret or private domain by means of a film camera, and their penalties were reduced slightly to 12 day-fines for the first three applicants and four day-fines for Ms Strebel.

The applicants complained  that their sentence to payment of fines amounted to a disproportionate interference in their right to freedom of expression as protected under Article 10.

Judgment

It was clear that the sanctions imposed on the applicants were an interference with their Article 10 rights.  They were “prescribed by law” [40] and were for the legitimate aim of protection of the rights and reputation of others [43].

The Court then went on to consider whether the interference was “necessary in a democratic society”. After noting that freedom of expression was one of the essential foundations of a democratic society and the essential role of the press, the Court recalled that the exercise of freedom of expression carried with it “duties and responsibilities” [44] to [47].  As a result,

“despite the vital role played by the media in a democratic society, journalists cannot in principle, be released by the protection offered by article 10 of their duty to respect the criminal law” [47]

The Court also noted that the right to reputation was an element of private life and was protected by Article 8 [49].  However, in this case the broker was not a public figure and was not being criticised personally.  The impact of the story on his personal reputation was limited [52].

The court referred to the six criteria established to balance Article 8 and Article 10, set out in the 2012 Grand Chamber case of Axel Springer v Germany. These criteria are:

(i) contribution to a debate of general interest

(ii) how well known is the person concerned and what is the subject of the report?

(iii) prior conduct of the person concerned

(iv) method of obtaining the information and its veracity/ circumstances in which the photographs were taken

(v) content, form and consequences of the publication

(vi) severity of the sanction imposed

Applying these criteria in the present case:

  • The poor quality of advice given by private insurance brokers and the protection of consumer rights was an important matter of public interest [57] to [58].
  • The broker was not a well known figure and had not been targeted personally by the report which was dealing with business practices [60]
  • The methods of obtaining information were important. The domestic courts had taken different views on whether the journalists had obeyed the rules of the Swiss Press council on hidden cameras but the applicants should have the benefit of the doubt [61]
  • In relation to the way in which the recordings were published, the broadcast footage was pixelated and the broker’s voice was changed.
  • As a result, the interference with the privacy of the broker was not so serious as to outweigh the public interest in the information about alleged wrongdoing in relation to insurance advice.
  • Finally, although the penalties were relatively light they had a chilling effect.

As a result, there was a violation of Article 10.

Comment

This case has attracted some comment in the British media – coming as it did shortly after the news stories based on secret filming of two former Foreign Secretaries.  The Press Gazette headlined its story “European Court backs journalists’ right to use hidden cameras“.  The Media Legal Defence Initiative, which lodged a written intervention in the case [pdf],  described it as a “ground breaking judgment“.

In truth, the decision is of limited general interest.  As the Court noted, the parties were agreed that hidden cameras could be used only under strict conditions – only where there was an overriding public interest in the dissemination of the information, which could not be obtained in any other way [61].  This closely corresponds to the position laid down in the various English broadcasting codes and in the IPSO Editors Code of Practice (clause 10).  The difference between the parties was over the application of those principles to the facts of the case.

The Court was strongly influenced by the fact that the broadcasters were not trying to obtain information about a particular individual but about the business practices of an industry.  The individual broker who was filmed was not identifiable, with his face being pixelated and his voice disguised.

This is a long way from the use of hidden cameras “on spec” in an attempt to obtain damaging disclosures by a politician or celebrity. A “fishing” expedition of this kind was condemned even by the feeble PCC in the well known Vince Cable case.  In an adjudication published on 10 May 2011 the PCC noted that it had

“consistently ruled that so-called ˜fishing expeditions’ – where newspapers employ subterfuge and use clandestine devices without sufficient justification – are unacceptable”.

The applicants in this case were clearly engaged in public interest journalism.  Although it is not clear whether their actions were based on some pre-existing suspicion about the broker in question, they took all proper steps to protection his privacy and it is unsurprising that the Court of Human Rights found that their convictions violated Article 10.  The decision however casts no light on the proper Article 10 approach to cases where the object of the filming is to “expose” a specific well-known individual.  Such cases are always going to be fact sensitive.

Finally, it can be noted that this is another case in which the court has used the Axel Springer criteria for balancing Articles 8 and 10 in a journalistic context. I have previously noted that difficulties which have arisen from a mechanistic application of these criteria outside their proper context.  However, bearing in mind the fact that the original complaint against the journalists, in substance, related to intrusion on privacy, this approach has some advantages.   In contrast to the position in straightforward defamation cases, the criteria were of some value in this case.


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