At the end of last month, the Grand Chamber of the Court issued its judgment in the case of Bédat v. Switzerland on journalism and investigative secrecy in criminal cases. One of our regular guest bloggers, professor Dirk Voorhoof of Ghent University, has written a critical review of the judgment. Please see his comments in the guest post below:
The Grand Chamber strikes again: Bédat v. Switzerland
Criminal conviction of journalist for having published documents covered by investigative secrecy in a criminal case is no violation of Article 10 ECHR
It has become common knowledge amongst “Strasbourg observers” that the Grand Chamber of the European Court of Human Rights doesn’t have the best reputation in terms of guaranteeing the right of freedom of expression and information. In earlier cases such as in Perna v. Italy, Pedersen & Baadsgaard v. Denmark, Lindon, Otchakovsky-Laurens & July v. France, Stoll v. Switzerland, Palomo Sánchez v. Spain, Animal Defenders International v. United Kingdom, Mouvement Raeliën Suisse v. Switzerland and more recently in Delfi AS v. Estonia and Pentikäinen v. Finland the Grand Chamber’s findings of a non-violation of Article 10 were highly controversial.
On 29 March 2016 the Grand Chamber added a new judgment to this list in the case of Bédat v. Switzerland. In its earlier decision of 1 July 2014 the Chamber of the Court had found a violation of Article 10 of the Convention in the case originally designated as A.B. v. Switzerland (the applicant journalist in this case, Arnaud Bédat, agreed to the disclosure of his name in the Grand Chamber judgment). The Chamber considered the criminal sanction of Bédat, who had published confidential information about a criminal case, not necessary in a democratic society. The Grand Chamber, with fifteen votes to two, has overruled this finding. The Grand Chamber is of the opinion that the Swiss authorities stayed within their margin of appreciation and that recourse to criminal proceedings and the penalty imposed on the journalist did not amount to a disproportionate interference in the exercise of his right to freedom of expression.
The facts and the criminal conviction of Bédat in Switzerland
The article published by Bédat in the weekly magazine L’Illustré concerned the criminal proceedings against M.B. for having rammed his car into pedestrians. The incident, in which three people had died and eight others had been injured, had caused much emotion and controversy in Switzerland. The article contained a personal description of M.B., a summary of the questions put by the police officers and the investigating judge and M.B.’s replies. It also contained the information that M.B. had been charged with premeditated murder and, in the alternative, with murder and it was mentioned that M.B. appeared to show no remorse.
The article was accompanied by several 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 on the initiative of 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 in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre.
An unknown person had then brought the copy to the offices of the magazine which had published the impugned article. Bédat was found guilty of making public a series of documents which were to be considered part of the secret of the criminal investigation at that stage and he was ordered to pay a fine for an amount of 2.667 euros. Bédat lodged a complaint before the Strasbourg Court arguing that this conviction had resulted in a violation of his right to freedom of expression.
The judgment of the Second Section: violation of Article 10
On 1 July 2014, the Second Section of the Court found that the article reported on an important case. Although the interference was prescribed by law and pursued legitimate aims, it considered that the sanction did not respond to a pressing social need, not being sufficiently motivated and being disproportionate. The Court was far from unanimous, as the finding of a violation of Article 10 was only supported by four judges. While admitting the importance of maintaining the principle of the secrecy of criminal investigations, the majority was of the opinion that there was no evidence at all that the publication of the confidential information at issue 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 of the Court found that the criminal fine imposed on the journalist breached Article 10 of the ECHR. The three dissenting judges argued that the content of the information published by the journalist did not contribute to a debate on a matter of public interest and they emphasized the importance of the secrecy of criminal investigations, guaranteeing the rights of privacy of the accused, the presumption of innocence and the right to a fair trial. Referring to Stoll v. Switzerland, they argued that the Swiss authorities stayed within their margin of appreciation in applying Article 293 of the Swiss Criminal Code that penalizes “anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law”. The conclusion of the Court however was, with four votes to three, that there had been a violation of Article 10 ECHR.
The judgment of the Grand Chamber: no violation of Article 10
While the Grand Chamber agrees with the Chamber that the interference was prescribed by law and pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”, the majority of the Grand Chamber comes to another conclusion with regard to the question of whether the fine imposed on the journalist was necessary in a democratic society. Most importantly, the Grand Chamber emphasizes everyone’s right to a fair hearing as secured under Article 6 § 1 of the Convention, which, in criminal matters, includes the right to an impartial tribunal and the right to the presumption of innocence:
“This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.” (§ 51)
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, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (...); the concept of responsible journalism 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 clarifies that it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention and that in such a situation the Court must weigh up the competing interests. Reference is made to cases where the right of privacy (Article 8) and the right to freedom of expression (Article 10) are conflicting and the Court considers that an analogous reasoning must be applied in weighing up the rights secured under Article 10 and Article 6 § 1 respectively. In such a format of balancing rights it is the Court’s approach that where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court’s case-law, strong reasons are required if it is to substitute its view for that of the domestic courts.
Next, the Grand Chamber takes into consideration the following six criteria as part of its balancing test:
(i) How the applicant came into possession of the information at issue
(i) How the applicant came into possession of the information at issue
Although 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 which he was planning to publish. It was not under dispute that the publication of the information in question fell within the scope of Article 293 of the Swiss Criminal Code (§ 57).
(ii) Content of the impugned article
Although the Grand Chamber reiterates that it is not for the judicial authorities to substitute their own views for those of the press as to what reporting technique should be adopted by journalists and that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation, it qualifies the litigious article about M.B. as “a highly negative picture of him, adopting an almost mocking tone” (§ 60). The article of Bédat had “a sensationalist tone” and it formulated 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
According to the Grand Chamber the journalist 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
The judgment repeats the importance of the secrecy of investigations,“geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence, and more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming and decision-making processes within the judiciary” (§ 68).
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).
It agrees with the findings by the Swiss Courts that the records of interviews and the accused’s correspondence had been“discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court” (§ 71).
(v) Infringement of the accused’s private life
The Grand Chamber reiterates that in order to fulfil its positive obligation to safeguard one person’s rights under Article 8, such as the right of reputation, the State may have to restrict to some extent the rights secured under Article 10 for another person. Therefore, it considers that the criminal proceedings brought against Bédat were in conformity with the positive obligation incumbent on Switzerland under Article 8 of the Convention to protect the accused person’s private life.
The Court also notes that when the impugned article was published, the accused was in prison, and therefore in a situation of vulnerability. Moreover, there is nothing in the case file to suggest that he was informed of the publication of the article and of the nature of the information which it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability:
“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).
The Court refers to the fact that Bédat was originally given a suspended sentence of one month’s imprisonment, but that this sentence was subsequently commuted to a fine of CHF 4,000, a sum that finally has been advanced by his employer. Furthermore, the penalty was imposed for breaching the secrecy of a criminal investigation, and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life. Therefore, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public about ongoing criminal proceedings.
Accordingly, the Court sees no strong reason to substitute its own view for that of the domestic courts and having regard to the margin of appreciation available to States and to the fact that the exercise of balancing the various competing interests was properly conducted by the Swiss Federal Court, the Grand Chamber concludes that there has been no violation of Article 10 of the Convention.
Two judges strongly dissent (López Guerra and Yudkivska), the latter expressing the view that
“This Court had always regarded the press as the servant of an effective judicial system, granting little scope for restrictions on freedom of expression in such matters as the public interest in the proper administration of justice. In my view, the present judgment constitutes a regrettable departure from this long-established position”.
The Grand Chamber’s judgment again illustrates that journalists are not above the law, and that a breach of the law in obtaining certain documents or making them public only in very specific circumstances can be fully protected by Article 10 of the Convention (see e.g. Fressoz & Roire v. France, Radio Twist v. Slovakia and Dupuis v. France). In this case the Court again refers to the concept of “responsible journalism”, including the expectation that a journalist in his or her actions of newsgathering 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.
It is somewhat bizarre that the Grand Chamber considers it as a breach of responsible journalism to publish information with a confidential nature. As any experienced journalist will tell you: almost any information is likely to be confidential. And how can the Court reconcile this approach with the high level of protection of journalistic sources and the protection of whistleblowers? Are journalists from now on acting irresponsible by publishing the information obtained from leaking sources or whistleblowers, and can this be an additional, if not decisive argument, to consider the journalists criminally liable for not respecting the secrecy or confidentiality of that information?
In fact, the Grand Chamber opts for a kind of circular reasoning. Indeed the starting point is that the journalist is prosecuted for committing a criminal offence acting as a journalist, while the journalist’s defence is that this criminal offence is justifiable in order to purvey his task as public-watchdog in society. Adding the condition that a journalist must act responsibly and by requiring that he shall not breach the law, the scope of the public interest defence of journalists risks to be substantially narrowed down, if not annihilated.
The use of the concept of “responsible journalism” is also criticized in more general terms in a dissenting opinion in another recent case in which the Court relied on this notion in finding no violation of Article 10. In his dissenting opinion in Rusu v. Romania (8 March 2016) the president of the Fourth Section, judge András Sajó, stated:
“To our regret we observe time and again that the concept of responsible journalism (..) results in undermining freedom of the press. And this case is no exception! While there are responsibilities attached to all professional activities, when it comes to the press, the reference to responsible journalism is disturbing (...)”.
Secondly, it is remarkable that the Court is not as much considering the pressing social need of the interference at issue, but is rather requesting from the journalist to give evidence that the content of the article has effectively contributed to a public debate. While 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 investigation, the position of the victims or the objectivity of the trial court, without further specifying were precisely the impact or prejudice is or was to be situated. For the Grand Chamber such influences are an “inherent risk” of making information public that is part of the secret of criminal investigation. And while in other judgments the Court took into consideration whether or not the criminal court was composed of professional judges, in order to evaluate the impact of media coverage on the fair trial principle and presumption of innocence, now the Grand Chamber emphasizes the risk of influencing the trial court “irrespective of its composition”.
The Grand Chamber chooses rather to refer to the “sensationalist tone” of the article and it is somewhat strange that the Court found it problematic that Bédat had formulated a series of questions around the criminal case at issue “which the judicial authorities were called upon to answer, at both the investigation and the trial stages”, as if these kind of questions were not relevant from a journalistic point of view as well. The consideration by the Grand Chamber that Bédat failed to demonstrate that the article contributed to a debate of public interest is furthermore contrary to the Court’s approach in other cases, in which it stated “that all that matters is whether a report was capable of contributing to debate on a matter of public interest, and not whether it fully achieved that objective” (Haldimann v. Switzerland).
Of course, the Grand Chamber develops a strong argument, which is the vulnerable situation of the accused person, being held in pre-trial detention and hence not being in a favorable position to initiate a private prosecution or a civil lawsuit against 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 that there were no other or better actions that could have been taken by the authorities in order to safeguard the guarantees of 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 conflicting interest between 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 other private persons do not interfere with the privacy of fellow citizens or data subjects, Article 6 § 1 and the fair trial principle is of another nature. Article 6 § 1 of the Convention contains indeed a direct obligation for the state authorities themselves to secure fair trial principles, including the presumption of innocence before independent and impartial judges and courts.
Broadening the scope and enforcement of the presumption of innocence to be respected by private actors in society is a problematic extension of Article 6 § 1 of the Convention, and it further weakens the right of freedom of expression being situated in the frame of conflicting rights, with consequently a wider margin of appreciation for the State authorities to interfere, even by way of criminal prosecution and conviction of journalists. Requiring media reporting about crime and court cases, including major crime and eventually acts of terrorism, to uphold the presumption of innocence as it is required from the judiciary, is a big step to take.
Actually it is a too big step and it contrasts with the Court’s 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”.
Furthermore, imposing on media and journalism the same or a similar obligation to uphold the presumption of innocence as it applies to the judiciary is not only a mission impossible, it also confuses the different roles and functions of the media and the judiciary. It is up to the authorities to guarantee within the administration of justice the highest level possible of securing the impartiality and independence of judges and to have the presumption of innocence respected by them.
The duties and responsibilities of media and journalists should not be derived from Article 6 § 1 of the Convention, but should be evaluated from the scope of Article 10 § 2 of the Convention. From that perspective indeed it is and it should remain “true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings” and the scrutiny by the European Court should be a strict one.
No doubt that journalists and media are to bear in mind the presumption of innocence when reporting and commenting on pending criminal proceedings, it is certainly one of the basic principles of journalistic ethics and may induce their civil liability. Criminalizing journalists and media because of the publication of (leaked) information from criminal investigations, because this kind of information as such, in abstracto and inherently risks to affect the rights guaranteed by Article 6 § 1 of the Convention, creates a new legal standard for court and crime reporting in Europe. In Belgium e.g. a journalist who obtained information in similar circumstances as in Bédat v. Switzerland would not be convicted, as there is only a criminal offence of abuse of access to criminal files when the files are forwarded or made public with the intention and with the effective consequence to harm the criminal investigation or the privacy rights or other rights of other parties involved in the case (Article 460ter of the Criminal Code).
The new standard introduced by the Grand Chamber makes it possible that state authorities will develop a stricter policy and will prosecute, as part of their positive obligations under Article 6 § 1, media and journalists because of publishing leaked information from criminal files, even in cases of media reporting about major crime that has shocked society.
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)