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18.05.2016

ECtHR: Conviction for publishing court proceedings is violation of the freedom of speech

by Sofie Luise Burger
The European Court of Human Rights (ECtHR) decided on 22 March 2016 (application no. 48718/11) that the conviction of a journalist for publishing unauthorized recordings of a criminal trial violates art. 10 European Convention on Human Rights (ECHR).

ECtHR: Conviction for publishing court proceedings is violation of the freedom of speech ECtHR: Conviction for publishing court proceedings is violation of the freedom of speech

The applicant is a crime reporter for a Portuguese TV-channel. In November 2005, the channel had aired a segment on a criminal conviction of an 18-year-old for aggravated theft of a mobile phone. In her report, the journalist defended the innocence of the adolescent and claimed the verdict was an error of justice. The report included shots of the courtroom, extracts of sub-titled sound recordings and the questioning of witnesses by the prosecution and the defense, in which the voices of the witnesses and of the three judges were digitally altered. The journalist had also tried to interview the involved judges, who, however, had not wanted to state their positions on the case.

After the report was broadcast, a complaint was filed by the involved judges against the reporting journalist. As a result, the journalist was charged with a fine for non-authorised use of the recording of a court hearing. After going through all national instances, the journalist turned to the ECtHR, claiming a violation of her freedom of expression according to art. 10 ECHR.

The ECtHR decided that the conviction was an interference with the journalist’s right to freedom of expression. However, the Court found that the interference was prescribed by law, videlicet art. 88 Portuguese Code of Criminal Procedure, and that it pursued a legitimate aim, namely the protection of proper administration of justice and the right to respect private and family life of other persons involved in the trail, that is, the witnesses, the judges and the prosecutor, as enshrined in art. 8 ECHR.

Therefore, the journalist’s rights to inform the public and the public’s right to be informed had to be balanced against the privacy rights of those who had testified at the trial and the impartiality of the judiciary. In principle, the Court stated, the affected rights deserved equal respect, even though the freedom of expression and particularly the role of the press are – according to the Court – essential to a democratic society. Furthermore, the Court considered that the applicant had not obtained the recording illegally, as it was from the official tape recording of the proceedings, which was available to all the parties.

The journalist had even distorted the voices of the witnesses and the judges, thus anonymising the affected persons. And the report covered a subject of general interest, the journalist had aimed at unveiling an error of justice, and the hearing had been open to the public. Nevertheless, the journalist was still obliged to follow several duties and responsibilities while exercising her freedom of expression.

Even as a journalist, she needed to respect the rules of the criminal law which she was well aware of since she had been convicted for the very same offence before. On the other hand, the Court noted that the concerned persons have had the possibility to seek legal reparation for the infringement of their right to privacy, but hadn’t used that possibility. All in all, the Court found that the conviction of the journalist violated her rights to freedom of expression according to art. 10 ECHR.

In a dissenting vote, one of the judges claimed that art. 10 ECHR had not been violated. The journalist would have had the option to ask the concerned judicial authority for permission to publish the court proceedings; she had, however, not even attempted to get it. With this clear legal situation, the conviction of the journalist could therefore not possibly violate art. 10 ECHR.

Sofie Luise Burger is a research associate at the Institute of European Media Law (EMR) in Saarbrucken/ Brussels.


Read more

The full verdict of the ECtHR of 22 March 2016 (application no. 48718/11) is available in French language here.



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