National Security, Privacy, Data Protection and Retention, Protection of Sources, Surveillance
Ben Meir v. Prime Minister
Closed Mixed Outcome
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The European Court of Human Rights (ECtHR) found that the Greek Courts had violated the applicant TV broadcaster’s freedom of expression by imposing sanctions on the applicant for the broadcast of a secretly filmed video of a public official in a public place. However, the Court held that there had been no violation in respect of two further videos that had been secretly filmed on private premises. The videos showed, respectively, a parliamentary deputy who was also chairman of the inter-party committee on electronic gambling, entering a gambling arcade and playing on two machines; a meeting between the deputy and associates of the television host during which the first video was shown to the deputy; and a meeting between the deputy and the host in the latter’s office. The Greek Supreme court upheld the decision of the National Radio and Television Council which had fined the applicant 200,000 euros and ordered it to broadcast the Council’s full decision on its main news. The ECtHR reasoned that in balancing the competing rights of privacy, Article 8, and freedom of expression, Article 10, the Greek courts had not taken into account the fact that the first video was not recorded on private premises and that the interference with the official’s privacy rights under Article 8 was therefore significantly less serious than the interference occasioned by the second two videos where the Greek courts had struck a fair balance between the competing rights taking into account the way the information was obtained and the journalistic duties and obligations of the applicant company.
On January 24, 2002, the applicant company, owner of the Greek television channel ALPHA, broadcast a TV show named “Jungle”. The program included three videos that had been filmed with a hidden camera that showed: 1) A.C., then a member of the Hellenic Parliament and chairman of the inter-party committee on electronic gambling, entering a gambling arcade and playing on two machines; 2) a meeting between A.C. and associates of the television host of “Jungle”, M.T., during which the first video was shown to A.C. and 3) a meeting between A.C. and M.T. in the latter’s office. On 27 January 2002 the videos were shown again during a television show named “Yellow Press” presented by the same television host.
On May 23, 2002, the National Radio and Television Council held a hearing during which the broadcaster acknowledged the use of a hidden camera in the videos but argued that this was justified because A.C. was a public figure and nobody would have believed the journalists’ allegations if they had reported on the issue without broadcasting the images. The Council countered that if anyone was able to use a hidden camera by claiming that there was an overriding public interest in doing so, then all citizens – especially if they were public figures – would be exposed to the possibility of being subject to pressure and extortion. The Council ordered the applicant to pay 100,000 euros for each of the two television shows during which the above-mentioned videos were shown, and to broadcast for three days in a row on its main news show the content of its decision.
On April 4, 2003, the applicant lodged an application for annulment before the Supreme Administrative Court and, on January 23, the case was referred to the Plenary Supreme Administrative Court because of its high importance. The Supreme Court found that secretly video-recording a specific person constituted a violation of the right to personal image, as protected by Article 9 paragraph 1 of the Greek Constitution and Article 8 paragraph 1 of the European Convention on Human Rights (ECHR). Therefore, the broadcasting of images gathered by secret means did not come within the legitimate exercise of the right to inform, because the news has been obtained violating an individual fundamental right. The Supreme Court dismissed the application for annulment accordingly.
The applicant company applied to the ECtHR alleging, inter alia, a violation of its right to freedom of expression.
The European Court of Human Rights (ECtHR) had to decide whether the imposition on the applicant company of the fine and the obligation to broadcast the Council’s decision constituted interference with its freedom of expression. The Court found that the sanctions amounted to interference which will infringe the Convention unless it satisfies the requirements of paragraph 2 of Article 10, namely, that it was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph, and was “necessary in a democratic society” to achieve those aims.
There was no dispute that the interference was prescribed by law nor did the applicant contest that it had pursued the legitimate aim of protecting the reputation and rights of others, specifically of A.C. The Court then proceeded to consider whether the interference was necessary in a democratic society which takes into account whether the national courts struck a fair balance between the competing rights. In this regard, the Court stressed that its role was not to take the place of the national courts, but rather to review whether their decisions were compatible with the provisions of the Convention and the criteria laid down in the Court’s case-law.
In the present case the Court identified the following criteria as relevant in striking a balance between the competing rights: 1) the contribution of the report to a debate of public interest; 2) the degree of notoriety of the person affected and the subject of the report; 3) the prior conduct of the person concerned; 4) the circumstances under which the video was taken, the method of obtaining the information and its veracity; 5) the content, form and consequences of the broadcast; 6) the severity of the sanction.
The Court considered the report was in the public interest, in particular, because “the widespread use of gambling constituted a debate of considerable public interest.” [para. 52]. Moreover, the conduct of the deputy was particularly relevant due to his role as chairman of an inter-party committee on electronic gambling. Regarding the circumstances in which the videos were obtained, the Court stated that the first video was filmed in a public space in which anyone could have taken a photograph or, as here, filmed a video of the member of the Parliament and that it did not interfere with a person’s privacy. However the other two videos were filmed in a private place where the deputy was entitled to have an expectation of privacy.
In these circumstances, the Court considered that, in respect of the second two videos, the domestic courts had struck a fair balance between the right to impart information and the right to protect privacy taking into account the way the information was obtained and the journalistic duties and obligations of the applicant company. However, regarding the first video, the Court found that the Greek authorities did not take into account the circumstances under which it was obtained in particular that it had not been recorded in private premises and, therefore, that the interference with A.C.’s rights under Article 8 was significantly less serious. Indeed, the Strasbourg Court stated that “the domestic authorities should have included in their assessment the fact that A.C., by entering a gambling arcade, could legitimately have expected his conduct to have been closely monitored and even recorded on camera, especially in view of the fact that he was a public figure.” [para 78].
The Court therefore concluded that there had been a violation of Article 10 of the Convention in respect of the first video only.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands expression by acknowledging that a person cannot expect the same level of privacy in a public place as he can on private premises and that this is a relevant factor in balancing the rights to privacy against the right to impart information. However, the Court affirmed previous case-law that the publication of photographs is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate information about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices.
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