In this case, the Court was for the first time called upon to examine an application concerning the use of hidden cameras by journalists to provide public information on a subject of general interest, whereby the person filmed was targeted not in any personal capacity, but as a representative of a particular professional category.
The applicants, Swiss journalists, prepared in 2003 a documentary on sales of life insurance products, against a background of public discontent with the practices used by insurance brokers.
One of the journalists was posing as a customer and interviewed a broker while using two hidden cameras to highlight insurance broker malpractice. At the end of the interview, the journalist introduced herself and explained to 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. Later that year, sequences from the recording were broadcast on the “Kassensturz” programme, with the broker’s face and voice disguised.
On 5 November 2007, the journalists were convicted of having made a recording using a hidden camera and were given penalties. The applicants 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.
By a judgment of the High Court of the Canton of Zürich from 24 February 2009, the applicants were acquitted of the charge of violating the secret or private domain by means of a film camera and their penalties were slightly reduced.
Relying on Article 10 (freedom of expression), the journalists complained that their sentence to payment of fines had amounted to a disproportionate interference with their right to freedom of expression.
Firstly, the Court observed that the subject of the documentary produced, i.e. the low-quality advice offered by private insurance brokers and, therefore, the inadequate protection of consumers’ rights, was part of a very interesting public debate.
Secondly, the Court 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.
Thus, the Court held that the interference with the private life of the broker (la protection de la réputation et des droits d’autrui), 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.
Therefore, the Court concluded that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.
Judge Lemmens expressed a dissenting opinion, stressing out that the right to respect for private life of the broker according to Art. 8 of the Convention should be prioritized and that the journalists could have made the documentary using other means or resources.