By Dirk Voorhoof
It is common knowledge among “Strasbourg observers” that the Grand Chamber of the European Court of Human Rights does not have the best reputation of late in relation to the freedom of expression. In Palomo Sánchez v. Spain, Animal Defenders International v. United Kingdom, Mouvement Raeliën Suisse v. Switzerland, Delfi AS v. Estonia and Pentikäinen v. Finland, the Grand Chamber’s findings of no violation of Article 10 were highly controversial (see the posts on this blog, linked under each case). On 29 March 2016 the Grand Chamber added a new judgment to the list: Bédat v. Switzerland. With 15 votes to 2, the Grand Chamber overruled the Chamber’s earlier finding of a violation of Article 10.
The facts and the criminal conviction of Mr. Bédat in Switzerland
Mr. Bédat had written an article for the weekly magazine L’Illustré on the criminal proceedings brought against a person (M.B.) for having rammed his car into pedestrians, killing three people and leaving eight others injured. Mr. Bédat’s article on the incident contained a personal description of M.B., a summary of the questions put by the police and the investigating judge, and M.B.’s replies. It also mentioned that M.B. had been charged with premeditated murder and that he appeared to show no remorse. The article was accompanied by photographs of letters which M.B. had sent to the investigating judge. More than half a year later criminal proceedings were brought against the journalist by the public prosecutor for having published secret documents, in breach of Article 293 of the Swiss Criminal Code. It emerged from the investigation that one of the parties claiming damages from M.B. had lost a copy of the case file in a shopping centre. An unknown person had brought the copy to the offices of the magazine, which had published the impugned article. Mr. Bédat was found guilty of making public documents which were to be considered part of the secret of the criminal investigation and ordered to pay a fine for an amount of 2.667 euros.
On 1 July 2014 the Second Section of the Strasbourg Court, by four votes to three, found that the article reported on an important case and considered that the sanction imposed on Mr. Bédat did not respond to a pressing social need, was not sufficiently motivated and was disproportionate. While admitting the importance of maintaining the principle of the secrecy of criminal investigations, the majority of the Second Section was of the opinion that there was no evidence that the publication of the confidential information had affected the rights of the person concerned, neither in terms of his presumption of innocence, nor in terms of his right to a fair trial. Because of the risk of a chilling effect for journalists reporting on important crime and court cases and the relatively severe character of the sanction, the majority found that the criminal fine imposed on Mr. Bédat breached Article 10 of the ECHR.
The judgment of the Grand Chamber: no violation of Article 10
The Grand Chamber comes to the opposite conclusion in ruling whether the fine imposed on Mr. Bédat was necessary in a democratic society. In general terms the Grand Chamber reiterates 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. The concept of responsible journalism (…) is not confined to the contents of information which is collected and/or disseminated by journalistic means (…) [it] also embraces the lawfulness of the conduct of a journalist, and 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).
The Grand Chamber takes six criteria into consideration in balancing the conflicting rights in this case: the right to fair trial and presumption of innocence (Art. 6 § 1) and right to privacy and reputation (Art. 8) on the one hand, and freedom of expression on the other hand (art. 10).
(i) How the applicant came into possession of the information at issue: the Grand Chamber finds that, although Mr. Bédat had not obtained the information by unlawful means, as a professional journalist he must have been aware of the confidential nature of the information.
(ii) Content of the impugned article: the Grand Chamber qualifies the litigious article about M.B. as painting “a highly negative picture of him, adopting an almost mocking tone” (§ 60); as having “a sensationalist tone” and as formulating a series of questions “which the judicial authorities were called upon to answer, at both the investigation and the trial stages” (§ 61).
(iii) Contribution of the impugned article to a public-interest debate: the Grand Chamber rules that Mr. Bédat had failed to demonstrate “how the fact of publishing records of interviews, statements by the accused’s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation” (§ 66)
(iv) Influence of the impugned article on the criminal proceedings: according to the Grand Chamber it is
“undeniable that the publication of an article slanted in that way at a time when the investigation was still ongoing entailed an inherent risk of influencing the course of proceedings in one way or another, whether in relation to the work of the investigating judge, the decisions of the accused’s representatives, the positions of the parties claiming damages, or the objectivity of the trial court, irrespective of its composition” (§ 69).
Most importantly the Grand Chamber is of the opinion that
“a government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of the disclosure of secret information” (§ 70).
(v) Infringement of the accused’s private life: the Grand Chamber notes that when the impugned article was published, M.B. was in prison and therefore in a situation of vulnerability. Moreover, there is no evidence that he was informed of the publication of the article and of the information which it provided. In addition, M.B. was probably suffering from mental disorders, thus increasing his vulnerability. The Grand Chamber finds that:
“In those circumstances, the cantonal authorities cannot be blamed for considering that in order to fulfil their positive obligation to protect M.B.’s right to respect for his private life, they could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution” (§ 78).
(vi) Proportionality of the penalty imposed: the Grand Chamber recalls that “it is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings”, but
“Nevertheless, in the present case, the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression” (§ 81).
Taking these elements together, the Court sees no strong reason to substitute its own view for that of the domestic courts. Having regard to the margin of appreciation available to States and to the fact that the balancing exercise was properly conducted by the Swiss Federal Court, the Grand Chamber concludes that there has been no violation of Article 10.
The judgment refers to the concept of “responsible journalism” as including the expectation that a journalist shall not breach the law by making information public in cases where somebody else has breached his or her obligation of secrecy and the journalist has obtained the information in a lawful way. Such an approach is hardly reconcilable with the high level of protection of journalistic sources and the protection of whistleblowers. Are journalists from now on acting irresponsibly by publishing information obtained from leaked sources or whistleblowers, and can this be an argument to consider the journalists themselves criminally liable for making that information public?
The Court, moreover, not so much considers the pressing social need of the interference at issue, but rather requests from the journalist to prove that the article has effectively contributed to a public debate. In emphasizing that the journalist in this case “failed to demonstrate” that the article contributed to a debate on a matter of public interest, the Grand Chamber is of the opinion that the authorities do not need to demonstrate that the interference in the journalist’s freedom of expression was effectively necessary. For the Grand Chamber it is enough that the article might “in one or another way” influence the proceedings, without further specifying where precisely the impact or prejudice is to be situated.
The Grand Chamber does develop a strong argument related to the vulnerable situation of the accused person, being held in pretrial detention and hence not in a favorable position to sue the journalist. This circumstance, however, cannot justify the action taken by the public prosecutor and cannot legitimize the conviction of the journalist, as this would suggest that there were no other actions that the authorities could have taken to safeguard M.B.’s right to a fair trial. One of the dissenting judges gives a few examples of alternative ways of positive action by the Swiss authorities, such as “changing the trial venue, giving unequivocal instructions to jurors, sequestering the jurors, limiting extrajudicial statements by any lawyer, party, witness, or court official, etc. However expensive and time-consuming these measures might be, they would achieve the aim of ensuring fair trial guarantees and to protect the jury from outside influence, without excessive interference in press freedom”.
Finally, it is remarkable that the Grand Chamber expands its approach of balancing the competing interests of privacy protection (Art. 8) and freedom of expression (Art. 10) to the situation of conflict between the right to fair trial (Art. 6) and freedom of expression. The Court indeed considers that analogous reasoning must apply in weighing up the rights secured under Article 10 and Article 6 § 1 respectively (§ 52-53). While there is no doubt that Article 8 has a horizontal effect and that the state has a positive obligation in order to secure that private persons do not interfere with the privacy of fellow citizens, Article 6 § 1 and the fair trial principle is of another nature. Article 6 § 1 of the Convention contains a direct obligation for the state authorities themselves to secure fair trial principles, including the presumption of innocence before independent and impartial judges. Broadening the scope and enforcement of the presumption of innocence to private actors in society is a problematic extension of Article 6 § 1, further weakening the right of freedom of expression in the frame of conflicting rights, where a wide margin of appreciation applies. Requiring media that report about crime and court cases, including major crime and eventually acts of terrorism, to uphold the presumption of innocence as is required from the judiciary, is a big step to take. Actually it is too big a step and conflicts with the Court’s general viewpoint that “it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them”. Imposing on media the same or a similar obligation to uphold the presumption of innocence as applies to the judiciary, confuses the different roles of the media and the judiciary.
Dirk Voorhoof, Human Rights Centre Ghent University (Belgium), Copenhagen University (Denmark), Legal Human Academy and member of the Executive Board of the European Centre for Press and Media Freedom (ECPMF, Germany).
A longer version of this post was published previously on the ECHR Blog.