Strasbourg Observers

Ricci v. Italy: Less Restrictive Alternatives in Exercising Freedom of Expression?

November 07, 2013

On 8 October 2013, the European Court of Human Rights released its judgment in the case of Ricci v. Italy. The case concerned a broadcast by the satirical television programme Striscia la notizia (on Canale 5), which aired an intercepted episode of another television programme, normally broadcast on the public network RAI. The applicant in Ricci is the producer of the programme. In its judgment, the Court ruled that the domestic authorities – which had sentenced the applicant to four months imprisonment – had imposed a disproportionate sanction on her. However, the Court also ruled that the applicant had acted in contravention of the ethics of journalism by disseminating confidential communications and that, therefore, her condemnation as such did not violate art. 10 ECHR. It was only because of the imposition of an excessive – criminal – sanction that her freedom of expression had been violated. The Court’s judgment is particularly interesting, because it continues the recent trend of chastising applicants for the means they have chosen to exercise their freedom of expression, thereby seemingly imposing a less restrictive alternative requirement upon them.

The facts

In 1996 (!) Striscia la notizia (translation: the news slithers), a daily programme that takes a critical-satirical look at television programmes in order to reveal malpractices, aired the recordings for an episode of the cultural programme L’altra edicola, normally broadcast on the public network RAI. The episode in question concerned a debate between a writer and a philosopher on the philosopher’s latest book. During the recording of the episode for the RAI, a verbal fight broke out between the writer and the philosopher. Afterwards, the presenter of the programme asked her assistants whether the philosopher had granted permission to broadcast the footage. When she received a negative response, she shouted “That’s not possible! … We purposively put them together, those two!”. All of this featured on the recordings made for the RAI.

Because the philosopher had refused to grant his permission to broadcast the footage, the episode in question was never shown on the RAI. However, Canale 5 – during its routine operations – inadvertently intercepted the recordings for the episode. Striscia la notizia subsequently decided to air all the material in order to “reveal the true nature of television”. Striscia la notizia wanted to demonstrate how the RAI engaged in malpractices by purposively aiming to generate a quarrel between the writer and the philosopher in order to create a spectacle for its viewers, in an effort to increase the viewership.

Subsequent to the airing of the programme, the RAI filed a complaint for fraudulent interception of confidential communications and the distribution thereof. A criminal investigation was opened against the applicant, as producer of Striscia la notizia. The RAI and the philosopher – who had refused to grant his permission to the broadcasting of the footage on the RAI only to see it appear on Canale 5 ­– became civil parties to the criminal case, demanding compensation. At the first instance, in 2002, the applicant was convicted by the Tribunal of Milan for having broadcasted the footage (the conviction did not concern the interception of the images, since the applicant had not been responsible for that). The applicant was sentenced to four months and five days imprisonment and ordered to pay 10,000 euros in compensation to the RAI and 30,000 euros to the philosopher. In 2005 the Court of Cassation reversed the criminal conviction, since the infraction had become time barred in 2004, but it upheld the order to pay compensation.

Judgment and Comment

In its short reasoning, the ECtHR accepted that the case concerned an issue of public interest. However, it went on to hold that “if the applicant wished to open a debate on an issue of primary interest to society, such as the role of televised media, other means, which did not involve any violation of the confidentiality of televised communications, were open to her.” (own translation; original in footnote).[1] The Court continued to evaluate the applicant’s actions negatively, holding in particular that she could not pretend to not be aware of the confidentiality of the intercepted communications and that, therefore, she “did not act with respect for the ethics of journalism” (own translation; original in footnote).[2] The Court subsequently concluded that the condemnation of the application had not – in and of itself – violated art. 10.

However, the Court went on to consider the severity of the penalty imposed on the applicant. The Court pointed towards the chilling effect of the imposition of a criminal sanction (even if suspended and eventually reversed because the infraction had become time barred). The Court also held that the facts of the case – the broadcasting of a video, the content of which was not liable to cause an important prejudice – were not marked by any exceptional circumstances that could justify the imposition of such a severe sanction. Consequently, the Court ruled that art. 10 had been violated, but only due to the grave nature of the sanction.

I of course agree wholeheartedly with the latter finding of the Court. There is absolutely no reason to impose criminal sanctions in this kind of cases. I struggle more with the Court’s initial finding though, i.e. that the applicant had not respected the standards of ethical journalism and that, therefore, her conviction as such did not violate art. 10. Insofar as the aim of the applicant’s conviction was to protect the interests of the RAI, I fail to see why those interests were sufficiently important to warrant an interference with the applicant’s freedom of expression. The only relevant interest of the RAI, as I see it, was a commercial interest in protecting its own communications. Given the public interest at stake – Striscia la notizia wished to expose the RAI’s malpractice in purposively bringing people together for a debate not in order to inform the viewer, but to entertain them through quarrels between the guests – it seems to me that there are, from the viewpoint of the interests of the RAI, no sufficiently strong reasons to convict the applicant for having broadcast the intercepted footage. On the contrary, I consider there to be stronger reasons for protecting/respecting the applicant’s freedom of expression, coupled with the public’s right to be informed of matters of public interest, than for protecting the RAI’s commercial image.

However, matters are different in respect of the philosopher’s rights. He had refused to give his consent to the broadcasting of the footage on the RAI, only to see it reproduced on Canale 5. His Convention right to private life, in the form of protection of confidential communications, was thus at stake. In that respect, I find it much more difficult to fault the Court for finding that the domestic courts had been justified in striking the balance in favour of the philosopher’s rights. Nevertheless, I do wish to warn against the spreading of a new argument in the Court’s freedom of expression case law, namely the argument that individuals exercising their freedom of expression should have employed less restrictive means in doing so.

This is not the first time in recent years that the Court has ruled that other means were available to the applicant to bring her message across. Indeed, in PETA Deutschland v. Germany (8 November 2012) the Court held that “the applicant has not established that it did not have other means at their (sic.) disposal of drawing public attention to [its message]”. Similarly, in the admissibility decision of Ciuvică v. Romania (15 January 2013) the Court held that “les termes employés par le requérant n’étaient pas indispensables pour la communication de son message” (see my post here).

Until Ricci, the Court had – to my knowledge – never employed such less restrictive arguments as the core argument against the applicant. Instead, they tended to feature at the very end of the Court’s reasoning, as a sort of “furthermore” or “finally” argument that was tagged on after it had already become clear that the Court would find against the applicant. In Ricci, however, the Court appears to base its entire reasoning on the fact that the applicant had other means at her disposal in communicating her message. That would, I submit, be a dangerous development, since it drags the Court ever further into debates on where the boundaries of ethical journalism lie, debates in which it should arguably not wade too deeply. Moreover, and more importantly, the imposition of a genuine less restrictive alternative requirement on an applicant exercising her freedom of expression would seriously undermine the room the Court traditionally leaves for exaggeration or provocation in art. 10 cases. In that sense, a firm reminder is also in order that the ECtHR has frequently insisted that “it is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists.” Perhaps it would be wise for the Court to ask itself to what extent a reasoning built on the argument that “the applicants had other means at her disposal to communicate her message” is really compatible with that principle.

[1] “Si le requérant souhaitait ouvrir un débat sur un sujet d’intérêt primordial pour la société, tel que le rôle des médias télévisés, d’autres voies, qui ne comportaient aucune violation de la confidentialité des communications télématiques, s’ouvraient à lui.”

[2] “le requérant n’a pas agi dans le respect de l’éthique journalistique”.

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  • Laurens Lavrysen says:

    The way information is communicated is principally protected under Article 10, clearly there can be no general obligation on journalists to ‘minimize’ damage to other interests. But on the other hand, it would not be right either for the Court not to allow states to take such ‘alternatives’ into account when examining whether journalists have crossed a certain line. [Clearly it is difficult to dismiss such arguments altogether, since from a proportionality perspective, an interference with Article 10 that allows room for ‘alternative’ modes of expression is less serious than an ‘absolute’ interference that allows no such room whatsoever.]

    I think that this confusing line of case law can be explained by the Court failing to recognize that both positions are in fact compatible. Instead, the Court should principally protect the mode of expression and examine the question whether the state could justifiably have taken this ‘alternative’ as an element in the proportionality analysis, starting from the presumption that this ‘alternative’ is not relevant and placing the burden on the state to prove the contrary. The fact that an interference that allows room for ‘alternative’ modes of expression is less serious of course does not imply that this interference must not be properly justified in the light of the established Article 10 criteria [which exactly seems to be the problem in this case].

  • Good point Stijn Smet.

    The essence is that it always must be appropriately justified that an interference with the right of freedom of expression is necessary in a democratic society before a restriction or sanction can meet the Article 10 standard. By excluding protection for forms of expressions or information because the message could have been communicated by other means or in another way, Article 10 is turned upset down. Holding that a message could have been communicated by other means, implicates that it was not necessary to communicate the message through the means or in the way the applicant, or in this case the journalist did.
    From this perspective, it turns out to be the journalist who has to prove that the use of the right of freedom of expression in the way he or she did, was necessary, in terms that there were no other means at his or her disposal. By allowing and now even supporting this kind of argumentation, the European Court risks that the protection of freedom of expression and information guaranteed by Article 10 will be watered down. In the age of the Internet and access to all kind of online media, there will always be other means of communication than the one the applicant precisely has used. And journalists in most cases will have several means of newsgathering and news presentation at their disposal.

    The Court should indeed get back on the track it put itself on since Jersild v. Denmark (23 September 1994) : “it is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists”. In the same judgment the Court defined what its task precisely is in these kinds of matters : “the most careful scrutiny on the part of the Court is called for when, (…), the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern.” It is necessary to be reminded of the importance of this approach, as the blog of Stijn Smet demonstrates.

    With the reasoning of Ricci v. Italy, the Court could now come to a finding of a non-violation of Article 10 in practically all defamation cases and cases where journalistic reporting was based on confidential information (such as Fressoz and Roire v. France and Radio Twist v. Slovakia), all cases in which the Court previously found a violation of Article 10 of the Convention.

    Dirk Voorhoof

  • Please read “upside down” in my comment, in stead of “upset down”. May be I was a bit upset myself after reading the reasoning in Ricci v. Italy. Anyway the message is : “Article 10 is turned upside down”.
    Dirk Voorhoof

  • Darian Pavli says:

    I also find the assumption that publication of confidential communication is generally in violation of “journalistic ethics” rather facile and hugely problematic. What if this were a private communication about the bribing of a judge that the press somehow managed to obtain?

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