Content Regulation / Censorship, Privacy, Data Protection and Retention, Defamation / Reputation
Hegglin v. Google
Closed Mixed Outcome
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Arnaud Bédat, a journalist for Swiss weekly magazine L’Illustré, published an article about a controversial car accident in 2003 that resulted in the death of three people. In his article, Bédat discussed in detail the ongoing criminal investigation against the driver in that collusion, including the questions asked by the investigating officers and the judge, the driver’s replies, the description of the criminal charges, as well as the copies of the driver’s letters submitted to the investigating judge.
Subsequently, the public prosecutor brought a complaint against the journalist for having published secret documents in breach of Article 293 of Switzerland’s Criminal Code. Bédat was sentenced to one-month imprisonment. The Lausanne Police Court then replaced the prison sentence with a fine of 4,000 Swiss francs. Upon unsuccessful appeals, Bédat filed an application with the European Court of Human Rights. In July 2014, the Chamber found Switzerland in violation of Article 10 of the European Convention on Human Rights. On appeal, the Grand Chamber found no violation of Article 10 after assessing a number of factors, including the content of impugned article, its contribution to a public interest debate, and its infringement of the driver’s right to privacy.
In July 2003, a car accident on the Lausanne Bridge in the city of Lausanne, Switzerland killed three people and injured eight others. Because of its casualty, the accident generated controversy in the country and later prompted much media coverage. During the criminal proceedings against the driver at fault, Arnaud Bédat published an article in weekly magazine L’Illustré, detailing the circumstances of the case. In a paragraph, for example, Bédat discussed the content of the letters sent by the driver to the investigative judge. And as evidence, he attached several photographs of those letters to the article. Additionally, he provided a summary of the questions asked by police officers and the investigating judge, as well as the driver’s responses and replies. He also mentioned the pending criminal charges and statements given by the driver’s wife and his doctor.
In the meantime, another article on the same subject was published in Tribune de Genève newspaper, which covered certain aspects of the criminal investigation that were voluntarily provided by police authorities. Yet Bédat’s article prompted the public prosecutor to bring a complaint against him for having published confidential information in violation of Article 293 of the Criminal Code. Bédat argued that he gathered the information in good faith without obtaining it unlawfully. The evidence revealed much of the information mentioned in the article was based on a copy of the case file against the driver that was lost by one of the plaintiffs in the case and was later found by an unknown individual.
In June 2004, Bédat was sentenced to one-month imprisonment. Following the first appeal, the Lausanne Police Court replaced the prison sentence with a fine of 4,000 Swiss francs. Bédat lodged further appeals on points of law which were ultimately dismissed by both the Criminal Court of Cassation of the Canton of Vaud and the Federal Court.
Having exhausted all domestic remedies, Bédat later filed an application with the European Court of Human Rights, arguing that the complaint and the resultant sentence violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.
In July 2014, the Court’s Chamber concluded that Bédat’s conviction violated his right to freedom of expression. It first considered that the action against the journalist amounted to an interference with his right but it was pursuant to the government’s interest in preventing the disclosure of confidential information. Yet the Chamber was of the opinion that what was discussed in the article was a matter of public interest and its content could not jeopardize the accused’s presumption of innocence, given the fact the publication occurred two years prior to the first hearing and that the trial was without jury.
In September 2014, the Swiss government requested that the case be referred to the Grand Chamber of the Court under Article 43 of the Convention.
Bédat argued before the Grand Chamber that the publication was not intended to disclose confidential information. Rather, it met the obligation to inform the public about the car accident that had shocked the citizens. Alternatively, he argued that the nature of information did not justify the government to keep it secret.
He also noted that the publication neither influenced the ongoing investigation nor did it undermine the accused’s presumption of innocence. Lastly, Bédat explained to the Grand Chamber that the case involved a “virtual” balancing act between his rights as a journalist, who was convicted of a crime, and the privacy rights of the accused who never sought redress for protection of his privacy despite having the opportunity to do so.
The government of Switzerland, on the other hand, argued that there were no compelling reasons to inform the public about the criminal proceedings. It explained that the attention and interest triggered by the media coverage concerning the accident did not per se create a public interest in the disclosure of the confidential information. And as evidence, the government pointed out that what was published by Bédat did not shed light on the circumstances surrounding the accident, rather it only focused on the confidential correspondence of the accused. The government further emphasized that when balancing the conflicting interests at stake, the public’s right to information about judicial activities must be subject to protection of one’s right to presumption of innocence and privacy, as secured respectively by Articles 6 and 8 of the Convention.
First, the Grand Chamber agreed with the conclusions that the criminal action and the subsequent conviction interfered with Bédat’s right to freedom of expression and that such interference was prescribed by law pursuant to the legitimate aims of preventing the disclosure of confidential information and preserving the impartiality of the judiciary.
Next, the Grand Chamber addressed the question of whether the interference was “necessary in a democratic society” within the meaning of Article 10 of the Convention. After reiterating the Court’s jurisprudence on what constitutes necessary, the Grand Chamber discussed the importance of the press, as well as its duties, including the obligation to respect the reputation and rights of others and to prevent the disclosure of confidential information. According to the Court, “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.” [para. 50] And in addition to the content of information disseminated by the press, the concept of responsible journalism also “embraces the lawfulness of the conduct of a journalist.” [para. 50] The Court emphasized that an unlawful act of a journalist “is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.” [para. 50]
The Grand Chamber then noted the competing interests in the case; it said: “it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials.” [para. 52] At the same time, consideration must be given to the right of fair hearing under Article 6 of the Convention, which in criminal proceedings, the right includes the preservation of an impartial trial and protecting the accused’s presumption of innocence. The Court reminded that “the Contracting States have a certain margin of appreciation in assessing the necessity and the scope of any interference in the freedom of expression protected by that Article, in particular when a balance has to be struck between conflicting private interests.” [para. 54]
In balancing the interests at stake in this case, the Court addressed the following factors:
(1) The manner in which Bédat came into possession of the information
The Grand Chamber here followed the Chamber’s conclusion that Bédat could not have been aware of the confidential nature of the information. At the same time, the Court took into account that Bédat did not dispute before the Swiss domestic courts as to whether the publication could fall within the scope of Article 293 of the Criminal Code.
(2) The content of the impugned article
In considering the content of the publication, the Court gave deference to the findings of the Swiss Federal Court that the manner in which he quoted the correspondence between the accused and the investigating judge showed his motive of “satisfying the relatively unhealthy curiosity.” By considering the headings of the article, such as “Questioning of the Mad Driver” and “the reckless driver’s version,” the Grand Chamber sided with Federal Court in concluding that Bédat’s tone was sensational. In additional, it also took issue with his explicit conclusions about the veracity of accused’s statements, which in the Court’s opinion was precisely the function of the judicial authorities to address.
(3) Contribution of the impugned article to a public interest debate
The question here for the Court was whether the content of the article, particularly its confidential information was capable of contributing to the public debate on the criminal investigation or on the other hand, it merely served to satisfy the curiosity of its readers about the accused’s private life. The Court first reiterated that “the public has a legitimate interest in the provision and availability of information about criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest.” [para. 63] Here, the Grand Chamber made deference to the findings of the Federal Court of Switzerland that neither the records of the interviews nor the letters submitted by the accused “provided any insights relevant to the public debate and that the interest of the public in this case had at very most ‘involved satisfying an unhealthy curiosity.” [para. 65]
(4) Influence of the impugned article on the criminal proceedings
The Grand Chamber was of the opinion that even though Bédat did not expressly claim that the accused acted intentionally in the killing and injuring others, [the article] was nevertheless set out in such a way as to point a highly negative picture of the [accused], highlighting certain disturbing aspects of his personality and concluding that he was doing ‘everything in his power to make himself impossible to defend himself.’” [para. 69]
(5) Infringement of the accused’s private life
In Craxi v. Italy, App. No. 25337/94 (2003), the Court held that with respect to the protection of an accused’s private life, national authorities are both subject to negative obligation not to knowingly disclose confidential information, as well as to the duty to take steps to ensure effective protection of the accused’s right to privacy. Here in the present case, the Grand Chamber held that type of information disclosed in the article, such as the letters sent by the accused while in detention and the statements of his doctor, “called for the highest level of protection under Article 8.” [para. 76] On this point it disagreed with the Chamber’s view that instead of convicting Bédat of a crime, the accused could simply claim civil damages. The Grand Chamber particularly noted that at the time when the article was published, the accused was in detention and that nothing in the file suggested that he was aware of the publication.
(6) Proportionality of the imposed penalty against Bédat
Lastly, the Court assessed the severity of the penalty imposed upon Bédat. It first noted that the disclosure of confidential information involving a judicial investigation is punishable in all thirty member States of the European Council. It concluded that the criminal action and the subsequent penalty imposed upon Bédat did not amount to disproportionate interference with his right to freedom of expression. The Court reasoned that his one-month prison sentence was later commuted to a fine. And that such penalty was for the purpose of protecting the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life.
Based on the foregoing analysis, the Grand Chamber concluded that there was no violation of Article 10 of the Convention.
(1) Justice Lopez Guerra
Justice Guerra was of the view that in part because the information disclosed in the article was unlikely to adversely affect the criminal proceedings against the accused and the fact that the accused himself never sought legal remedies for breach of his privacy, “there was no reason in this case for the public authorities to restrict freedom of expression by imposing a penalty on the applicant journalist.” [pp. 34-35] Moreover, Justice Guerra disagreed with the majority as to proportionality of the penalty imposed against Bédat. According to him the monetary fine could still have “a chilling effect on the exercise of freedom of expression, introducing a factor of fear and insecurity in journalists with regard to their future publications.” [p. 35]
(2) Justice Yudkivska
Justice Yudkivska specifically dissented with the majority’s findings that the information disclosed in the article could not contribute to any public debate concerning the accident. Justice Yudkivska stated that the accused’s letters and statements made by his doctor were precisely about his mental state at the time of committing the crime, “which was of most interest to the general public.” [p. 38] Justice Yudkivska also stressed that the publication could not in anyway impair the integrity of the criminal proceedings and the Swiss authorities simply overacted. The Justice also reminded the majority of the Court’s long-held position that “the press [acts] 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.” [p. 43] For Justice Yudkivska, the judgment was “a regrettable departure from this long-established position.” [p. 43]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision of the Grand Chamber can be interpreted as having mixed outcome as there were two vital, fundamental human rights issues at stake: the right to freedom of expression, specifically in the context of free press in cases of covering judicial proceedings and on the other hand, the right to privacy, which with respect to criminal proceedings, it includes the protection of the accused’s presumption of innocence. The decision is also very significant in understanding the Court’s rather evolving interpretation of public interest. The majority in this case required the information about the judicial investigation or proceedings to be capable of contributing to a public debate. For the majority, the accused’s personal correspondence with the judge and the statements made by the accused’s spouse and doctor could not contribute to a public debate about the underlying crime that had promoted much media attention. On the other hand, the dissenting opinion was of the view that information could shed light on the accused’s mental state at the time of committing the crime, which was of most interest to the general public.
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