European Court backs journalists' right to use hidden cameras

The convictions of four journalists who secretly filmed an insurance broker for a weekly consumer protection television series were a breach of their rights to freedom of expression, the European Court of Human Rights (pictured, Shutterstock) held today.

The case was the first in which the court had dealt with the use by journalists of hidden cameras to provide public information on a subject of general interest, when the person filmed was targeted not in any personal capacity but as a representative of a particular professional category.

The Second Chamber of the Strasbourg Court said the interference in the private life of the broker, who had turned down an opportunity to express his views on the interview in question, was not serious enough to override the public interest in information on malpractice in the field of insurance brokerage.

The case was taken to Strasbourg by Swiss journalists Ulrich Haldimann, Hansjorg Utz, Monika Balmer and Fiona Strebel.

In February 2003 Balmer, the editor of the weekly consumer protection programme "Kassensturz", which has been a regular feature on Swiss German television (SF DRS) for many years, produced 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, Utz, and Haldimann, the editor-in chief of SF DRS, to record interviews between customers and brokers, using a hidden camera to highlight insurance broker malpractice.

Strebel, an SF DRS journalist, posed as a customer and met an insurance broker from a company on 26 February 2003.

There were two hidden cameras in the room in which the interview took place, transmitting the recording of the conversation to a neighbouring room, where Balmer and an insurance specialist were.

At the end of the interview Balmer entered the interview room, introduced herself and told the broker that he had been filmed. The broker said that he had 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 Haldimann, Utz and Balmer were convicted of having made a recording using a hidden camera and given penalties of 15 day-fines of varying amounts. Strebel was given five lower day-fines.

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

On 24 February 2009, the High Court of the Canton of Zurich acquitted the applicants of the charge of violating the secret or private domain by means of a film camera, and reduced their penalties slightly.

The journalists lodged their application with the European Court of Human Rights on 3 April 2009.

The Media Legal Defence Initiative (MLDI) was authorised to intervene in the written proceedings as a third party.

The Court reiterated its case-law on attacks on the personal 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: contributing to a debate of general interest, ascertaining how well-known the person being reported on is and the subject of the report/documentary, that person's prior conduct, the method of obtaining the information, the veracity, content, form and repercussions of the report/documentary, and the penalty imposed.

The Court applied those criteria to the present case, but noted that the insurance broker was not a well-known public figure, and the documentary in question was not geared to criticising him personally but to denouncing specific commercial practices.

The Court said the subject of the documentary – the low-quality advice offered by private insurance brokers, and therefore the inadequate protection of consumers' rights – was part of an interesting public debate.

It noted that, even if the broker might reasonably have believed that the interview was strictly private, the documentary in question had focused not on him personally but on specific commercial practices used within a particular professional category.

It also asserted that the applicants deserved the benefit of the doubt in relation to their desire to observe the ethics of journalism as defined by Swiss law, citing the example of their limited use of the hidden camera.

The safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest was subject to the proviso that they were acting in good faith and on an accurate factual basis and provided "reliable and precise" information in accordance with the ethics of journalism.

The Court noted in this respect that the veracity of the facts as presented by the applicants was not contested.

On the manner in which the documentary was broadcast and the broker presented, the Court observed that the recording was broadcast in the form of a report which was particularly negative in as far as the broker was concerned, using an audio-visual media which was often much more immediate and powerful in effect than the written press.

But a decisive factor was that the applicants had disguised the broker's face and voice and that the interview had not taken place on his usual business premises – so 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.

Lastly, the Court considered that despite the relative leniency of the penalties the criminal court sentence was liable to discourage the media from expressing criticism, even though the applicants had not been prevented from broadcasting their documentary.

There had been a violation of Article 10.

The judgment is available only in French. This report is based on a press release issued by the court's Registry.

Media law specialist Mark Stephens, a partner with law firm Howard Kennedy – who wrote the MLDI's representation for its intervention in the case – said the judgment had very wide-ranging implications for European Union law, which now had to be compliant with the European Convention on Human Rights.

"There is still a place for hidden cameras, and accountability," he said.

"One thinks of the wrongdoing we have seen involving vulnerable old people, in funeral homes, and in places caring for people with mental health issues – these have all been exposed through the responsible use of hidden cameras."

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