EUROPEAN COURT RULES FOR FIRST TIME ON USE OF HIDDEN CAMERAS BY JOURNALISTS

EUROPEAN COURT RULES FOR FIRST TIME ON USE OF HIDDEN CAMERAS BY JOURNALISTS

The European Court of Human Rights has examined for the first time in Haldimann and Others v Switzerland (application no. 21830/09), 24 February 2015 , the use of hidden cameras by journalists to provide public information on a subject of general interest, whereby the person filmed was not targeted in any personal capacity but as representative of a particular professional category. Aside from the practical question of when it is acceptable to use hidden cameras, the case is also of interest as an example of how the Court deals with conflicting Convention rights, in this case between the journalists' right to freedom of expression under Article 10 ECHR and the subject's right to respect for his private life under Article 8 ECHR.

The applicants were four Swiss journalists who worked on a Swiss TV programme on consumer protection.

The case arose from a documentary they made in 2003 on the sales of life insurance products. It was decided to record interviews between customers and brokers, using a hidden camera to highlight insurance broker malpractice. A journalist posing as a customer met with an insurance broker from company X in a room in which hidden cameras had been placed, transmitting the recording of the conversation to a neighbouring room in which the editor and an insurance specialist were watching. At the end of the interview, the editor entered the room, introduced herself and explained to the broker that he had been filmed. The broker refused to comment when invited to do so. A month later, sequences from the recording were broadcast, with the broker's face and voice disguised.

Four years later, the editor of the programme, the editor responsible for it, and the editor-in-chief of the TV station were convicted of having made a recording using a hidden camera and given penalties of 15 day-fines of 100, 200 and 350 Swiss Francs respectively. Five day-fines of 30 Swiss Francs were imposed on the journalist who had posed as a customer.

The journalists 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 stake, they could have used a different approach less damaging to the broker's private interests.

In 2009, the High Court of the Canton of Zurich acquitted the journalists of the charge of violating the secret or private domain by means of a film camera, and reduced their penalties to 12 day-fines for the editors, and four day-fines for the undercover journalist.

The applicants complained to the European Court of Human Rights that their sentence to payment of fines constituted a disproportionate interference in their right to freedom of expression under Article 10 ECHR.

The Court referred to its earlier case-law on attacks on the public reputations of public figures and the six criteria which it had established in order to weigh freedom of expression against the right to private life:

1. contributing to a debate of national interest;
2. ascertaining how well-known the person being reported on is and the subject of the report/documentary;
3. that person's prior conduct;
4. the method of obtaining the information;
5. the veracity, content, form and repercussions of the report/documentary;
6. the penalty imposed.

In respect of these factors, the Court found:

• the subject of the documentary was the low-quality advice offered by private insurance brokers, ie the inadequate protection of consumers' rights, which was part of a very interesting public debate;
• even if the broker might reasonably have believed that the interview was strictly private, the documentary had focused not on him personally but on specific commercial practices used within a particular professional category;
• the journalists deserved the benefit of the doubt in relation to their desire to observe the ethics of journalism as defined by Swiss law, citing their limited use of the hidden camera. It had never been suggested that they had acted otherwise than in good faith and on an accurate factual basis and had provided "reliable and precise" information in accordance with the ethics of journalism;
• although the recording had been broadcast in the form of a report which was particularly negative towards the broker, and using a medium that was often much more immediate and powerful than the written press, a decisive factor was that the journalists had disguised the broker's face and voice and that the interview had not taken place on his usual business premises;
• the Court therefore held that the interference in the private life of the broker, who had decided against expressing an opinion on the interview, had not been serious enough to override the public interest in receiving information on the alleged malpractice in the field of insurance brokerage;
• finally, the Court considered that the criminal court sentence, despite its relative leniency, had been liable to discourage the media from expressing criticism, even though the applicants had not been prevented from broadcasting their documentary.

The Court therefore concluded that there had been a violation of Article 10. It did not consider that the interference in the private life of the broker had been serious enough to override the public interest in information on malpractice in the field of insurance brokerage.

The case therefore makes it abundantly clear that each case of this sort will be fact-sensitive. In this instance, resolving the issues was relatively unproblematic for the Court because the identity of the broker had been disguised. It will be much less predictable where the Court will draw the line in circumstances where no effort is made to disguise the identity of the subject of the report. In such circumstances, the balancing exercise between the private life rights of the individual and the public interest will be much harder to carry out.