In the case of Bédat v Switzerland ([2016] ECHR 313) the Grand Chamber overturned the Chamber’s decision and reached the surprising conclusion that the conviction and fine imposed on the applicant journalist for publishing a public interest story containing information covered by the secrecy of criminal investigations did not constitute a violation of his Article 10 rights.
Background
In 2003 the applicant published an article in L’Illustré dealing with criminal proceedings against a motorist who had crashed his car into passers-by on the Lausanne Bridge, resulting in three deaths and injuries to eight people. Amongst other things, the article questions the motorist’s state of mind and includes a personal description as well as photographs of letters sent by him to the investigating judge.
The motorist did not lodge a complaint against the applicant. However the public prosecutor brought criminal proceedings against him. Initially the applicant was sentenced to one month’s imprisonment, but after an application to set aside the decision, this was changed in 2005 to a fine of 4,000 Swiss Francs.
The applicant’s appeal on point of law was dismissed by the Criminal Court of Cassation of the Canton of Vaud in 2006, whilst his public-law appeal and appeal was dismissed by the Federal Court.
The applicant did not dispute that the material he published fell within the scope of Article 293 of the Criminal Code, which provides that
“Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment or a fine”.
However, he contended that reading Article 293 and Article 32 of the Criminal Code in light of Article 10 principles meant that there was sufficient public interest in the case, affecting people in a small geographical area, to justify the publication of the article by a professional journalist.
In its judgment of 1 July 2014 the Second Section held that there had been a violation of Article 10, stating that the applicant’s conviction and fine did constituted an unjustified interference with his right to freedom of expression. In reaching their judgment the Chamber considered held that the article addressed a matter of public interest.
They noted that the article had not addressed the matter of the accused’s guilt and had been published more than two years before the driver’s first trial. The accused had been tried by a court made up entirely of professional judges. The accused had not pursued remedies which were available to him. The fine was disproportionate to the legitimate aim pursued
The Government referred the case to the Grand Chamber and a hearing took place on 13 May 2015.
Judgment
The Grand Chamber set out the well established principles for assessing the necessity of an interference with the exercise freedom of expression [48]. It noted that there was little scope for restrictions in the fields of political speech and matters of public interest [49].
The Grand Chamber also noted the essential of the role of the press in a democratic society but went on to recall that
“the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism” [50]
This concept also embraced the lawfulness of the conduct of the journalist: “the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly” [50].
When reporting on trials, the media had the task of imparting information to the public but consideration had to be given to everyone’s right to a fair hearing. This included the presumption of innocence [51].
The Grand Chamber referred to the balancing of rights under Articles 8 and 10 (using the Axel Springer criteria) and suggested that analogous reasoning should apply when weighing up the rights secured by Articles 10 and 6(1).
The Grand Chamber noted that
“the applicant’s right to inform the public and the public’s right to receive information come up against equally important public and private interests which are protected by the prohibition on disclosing information covered by the secrecy of criminal investigations. Those interests are the authority and impartiality of the judiciary, the effectiveness of the criminal investigation and the right of the accused to the presumption of innocence and protection of his private life” [55].
It specified a number of criteria in weighing up these interests.
(i) How the applicant came into possession of the information at issue
Whether or not the applicant had received the information unlawfully was not necessarily the most important question. It was more important to note that the confidential nature of such information was unlikely to have escaped him upon publication [56] – [57].
(ii) The Content of the impugned article
The Court noted that Article 10 only protects journalists insofar as they behave in a suitably ethical manner, which relates both to the content and form of the article. They were careful to point out that whilst it is not within their remit to unilaterally decide what is and is not appropriate, nevertheless the Court could not ignore the assessment of the article delivered by the Federal Court. Attention was drawn to the “almost mocking tone” used by the applicant in portraying the motorist which may or may not have influenced judicial proceedings in some way [58] – [60].
(iii) The Contribution of the impugned article to a public-interest debate
The Court held that there was a distinction between the subject of the article and its content. Whilst the subject was indeed a matter of public interest, the Grand Chamber agreed with the Federal Court that the publication of the motorist’s interviews and letters were irrelevant to public debate; any public interest in this content could be better termed “an unhealthy curiosity” [65].
(iv) Influence of the impugned article on the criminal proceedings
Although Articles 10 and 6 deserved equal respect, in principle the Grand Chamber said that it is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of what is at stake in criminal proceedings [68].
The Grand Chamber agreed with the Federal Court in stating that even if the article did not attribute intent to the motorist, it still clearly depicted him in a negative way which may have unfairly biased judicial decisions [68].
It was not necessary to prove that the publication had influenced criminal proceedings, the risk of influence justified the adoption of deterrent measures such as the prohibition of the disclosure of secret information [70]
(v) Infringement of accused’s private life
The Court stated that a balance should be maintained between Article 8 and Article 10. The Grand Chamber agreed with the view that the Swiss Government has both a negative and positive obligation under Article 8. The existence of civil law remedies for the individual does not release the state from its Article 8 obligations towards the accused [77].
In this case, the article was published the accused was in prison, and therefore in a situation of vulnerability. He was not informed of the publication and was probably suffering from mental disorders, thus increasing his vulnerability. [78]
(vi) Proportionality of the penalty
The Court held that both the criminal proceedings and the fine did not constitute a disproportionate interference with the applicant’s right to freedom of expression which would deter the press from their activities.
This was especially the case as the applicant’s suspended sentence was commuted to a fine advanced by his employer.
As a result, the Court held by fifteen votes to two that there had been no violation of Article 10 [79].
Judge López Guerra and Judge Yudkivska dissented.
Comment
The case it raises important questions over what confidential material a journalist can publish where investigations are concerned, without the fear that a criminal conviction and penalty would not be considered a violation of Article 10. As a result, in a post on this blog Professor Dirk Voorhoof criticised the majority for its view that “analogous reasoning” [53] must be made when weighing up the rights between Article 8 and 10, and Article 6 and 10. The argument is that where Article 8 has horizontal effect, applying the same principle to a consideration of Article 6 means requiring a certain behaviour from the press which undermines, to a certain extent, their purpose in the first place. The question is: how easy is it becoming to criminalise journalists?
In his dissenting judgment, Judge López Guerra argued that there had unquestionably been a violation of Article 10 as freedom of the press to be one of the essential foundations of a democratic society. He noted that the article did not actually comment on any potential outcome of the motorist’s case so was unlikely to have influenced judicial proceedings, whilst the fact that the accused never actually invoked his right to privacy.
Where the majority of the Grand Chamber sees the motorist’s mental state as a private and sensitive affair, Judge Yudkivska in his dissenting judgment viewed it as a matter of public interest since it shows a MB’s thought process at a collectively traumatic time for the people in the small area of Lausanne. In essence, this case repeatedly raises serious issues of boundaries that are as practical as they are principled.
There are compelling arguments advanced on on both sides. However, in the final analysis it is difficult to disagree with the conclusion of Judge Yudkivska’s dissent:
“This Court had always regarded the press as the servant of an effective judicial system, granting little scope for restrictions on freedom of expression in such matters as the public interest in the proper administration of justice. In my view, the present judgment constitutes a regrettable departure from this long-established position”.
Calypso Blaj is studying for the Bar.
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