Content Moderation, Content Regulation / Censorship, Defamation / Reputation, Digital Rights, Hate Speech, Licensing / Media Regulation, Privacy, Data Protection and Retention
Zöchling v. Austria
Closed Mixed Outcome
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The Fourth Section of the European Court of Human Rights ruled that the injunction requiring a news company to cease the publication of unedited CCTV footage depicting a police officer without pixelating his face violated the freedom of expression under Article 10 of the European Convention on Human Rights. The case involved the publication of footage showing a police intervention in a nightclub, where the officer’s identity was revealed. While the ECtHR acknowledged the legitimate interest of civil servants, including police officers, in protecting their private lives, it found deficiencies in the domestic courts’ balancing of conflicting rights. The Court highlighted the importance of considering the specific context and potential contribution to public debate in each case, emphasizing that the broad restriction on future publications lacked justification and did not meet the necessity criteria in a democratic society.
The Applicant is a Limited Liability Company that operates a news website called “bild.de” covering contemporary news. On July 10, 2013, the Applicant Co. published an article on their website with the headline “Here the Police beat up D(28)” which reported the last month’s incident of June 23, 2013, wherein the Police intervened in a “Bremen Nightclub Gleis” after a customer name “D” behaved aggressively with a staff member of the club. With the article, the Applicant’s Co. also published the CCTV footage of the incident which they obtained from the club’s owner. [paras. 2, 5-6]
The video depicts an incident at Bremen nightclub Gleis 9 where multiple police officers forcefully bring an individual, referred to as D., to the ground. While D. is already immobilized on the floor, one officer is seen hitting him with a police baton and kicking him. The video, accompanied by a voice-over, describes the scene as shocking and highlights the alleged brutality of the Bremen police in dealing with D., who was accused of causing trouble and swearing at the nightclub.
Following the previous article, the Applicant Co. published another article with the headline “How the night of the beating unfolded (Protokoll der Prügel-Nacht)”. The article was again published with additional CCTV footage. [para. 7]
The video reveals D. throwing flyers at a staff member and making an aggressive gesture. P., one of the police officers involved in D.’s arrest, is seen on CCTV assisting in bringing D. to the ground. While P.’s face is visible for several seconds, the video does not show any indication of P. using excessive force during the arrest.
Both the articles and CCTV footage were widely re-posted by several regional and national newspapers. In the footage, one of the Police officials named “P” was clearly visible assisting other Officials in bringing D down to the ground. On July 18, 2013, the lawyer for P requested the Applicant’s Co. to cease the publication of the CCTV footage without P’s face being blurred. The Applicant Co. refused the request, leading to the Claim Petition before the Oldenburg Regional Court. In his Claim Petition, P sought an injunction to cease publication of the unpixelated surveillance video and reimbursement in the form of damages because of the publication. [para. 8-10]
On May 14, 2014, the Regional Court delivered the ruling wherein it ordered the Applicant Co. to cease publication of the CCTV footage without P.’s face being blurred. Despite dismissing P.’s damages claim, the Regional Court acknowledged the footage depicted P. in his official capacity, engaging in the use of force, and thus falling under the realm of contemporary society’s portrayal (Bildnis aus dem Bereich der Zeitgeschichte). While emphasizing the importance of the State’s monopoly on the use of force in public discourse, the Court found a violation of P.’s personality rights, highlighting that P. had not sought public attention, and the recording was made without his consent during the performance of his professional duties. The Regional Court considered the publications, particularly the voice-over and selective editing, as exacerbating the infringement on P.’s rights, depicting him unfavorably as a violent figure and emphasizing that the public interest primarily concerned police actions as an institution rather than P. as an individual. [para. 11]
The Applicant Co. filed an Appeal against the Regional Court’s ruling. On May 27, 2015, the Oldenburg Court of Appeal announced its intention to dismiss the appeal without a hearing, asserting that it lacked any prospect of success. The Oldenburg Court of Appeal affirmed the Regional Court’s conclusion that the CCTV footage portrayed an aspect of contemporary society but maintained that using the unblurred image of P. violated his personality rights. It reiterated the Regional Court’s point that the initial release by the applicant company only depicted the police intervention, omitting D.’s prior actions, and underscored the need to consider the CCTV footage within the context of accompanying commentary. [para. 12]
After providing an opportunity for comments from both parties, the Oldenburg Court of Appeal, on July 21, 2015, dismissed the Applicant Co’s appeal, reinforcing its stance that the publication of unedited CCTV footage without P.’s consent would violate his rights. The Oldenburg Court of Appeal specified that pixelation would be necessary for future reporting, whether portraying the claimant negatively or positively, to address concerns of potential misrepresentation and to maintain the delicate balance between portraying an aspect of contemporary society and routine police intervention. [para. 13]
A subsequent decision by the Federal Constitutional Court on August 3, 2017, declined to accept a constitutional complaint by the applicant company without providing reasons. [para. 14]
Justice Gabriele Kucsko-Stadlmayer, Justice Tim Eicke, Justice Faris Vehabović, Justice Branko Lubarda, Justice Armen Harutyunyan, Justice Anja Seibert-Fohr, Justice Anne Louise Bormann delivered a unanimous ruling. The primary issue before the Court was to determine whether the injunction to cease publication of the CCTV footage without P.’s face being pixelated had violated the Applicant’s freedom of expression under Article 10 of the Convention.
The Applicant Co. contested the domestic Courts’ assertion that displaying the unblurred likeness of the police officer (P.) was unnecessary for public information. It argued that the publication of the CCTV footage was an editorial choice within its purview. The Applicant Co. criticized the Court of Appeal’s stance, contending that the requirement to pixelate P.’s face in critical coverage potentially infringed on the freedom of the press. The Applicant Co. expressed concern that this approach could lead to a broad restriction on publishing photos of police officers in the line of duty. The Applicant Co. emphasized that P.’s identity was not disclosed to the public, expressing concern that the Courts had prioritized the personality rights of police officers over the freedom of the press and the public’s right to information. [para. 22]
On the other hand, the State contended that revealing the identity of the Police Officer (P.) was unnecessary for the journalistic goals pursued by the Applicant Co., as the unpixelated footage did not enhance credibility or provide additional relevant information to the public regarding the police intervention. The Government supported the Domestic Courts’ observation that the initial video published by the Applicant Co. presented an incomplete version of the nightclub events. It reiterated the Court of Appeal’s legal standpoint that, due to the nature of the video material, publishing the CCTV footage without pixelating P.’s face would violate his personality rights, irrespective of accompanying coverage. The Government contended that expecting P. to monitor and initiate new legal proceedings for each variation of coverage was impractical. [para. 23]
The ECtHR observed that both parties acknowledge that the domestic Courts’ directive to cease the publication of unedited CCTV footage constitutes an interference with the Applicant Co.’s freedom of expression. The interference was lawful and sought the legitimate goal of protecting the rights of others under Articles 823 and 1004 of the Civil Code. The Court noted that the crucial question for the Court was to determine whether the interference was deemed “necessary in a democratic society.” [para. 25-26]
The Court outlined the established principles regarding the necessity of interference in a democratic society, particularly in cases involving the balance between freedom of expression (Article 10) and the right to respect for private life (Article 8) under the European Convention. [NIT S.R.L. v. the Republic of Moldova, (2022); Axel Springer AG v. Germany, (2012) and Von Hannover v. Germany, (2012)] The Court also emphasizes the importance of how information is obtained and its accuracy, as well as the gravity of penalties imposed. [Couderc and Hachette Filipacchi Associés v. France, (2015)] [para. 27]
In the context of audiovisual media, the Court referred to I.V.Ț. v. Romania, (2022) and emphasized the duties and responsibilities of service providers, considering the immediate and powerful impact of audiovisual media compared to print. It notes the higher risk of harm on the Internet and highlights the proportionality of interference concerning the medium of expression. [M.L. and W.W. v. Germany, (2018)] The Court held that the concept of private life encompasses the right to control one’s image, with a person’s image being a key attribute of their personality. The right includes the ability to object to the recording, conservation, and reproduction of one’s image. The Court emphasized the need for effective judicial review in assessing the proportionality of measures under Article 10, and the absence of such review may lead to a violation. [López Ribalda and Others v. Spain, (2019), and Pretorian v. Romania, (2022)] [para. 28-29]
The Court considered various factors, including the contribution of the publications to a public interest debate, the person’s public prominence and prior conduct, the method of obtaining information and its veracity, the content and form of the publication, the content of the information, consequences of the publication, and the severity of the restriction imposed. [para. 30]
The Court applied established principles to assess the publications’ contribution to a public interest debate. The Regional Court and Court of Appeal recognized the CCTV footage’s portrayal of contemporary society and the significance of media coverage on police use of force. The focus was on the actions of the police as an institution rather than the individual, P., whose face was to be blurred according to the Court’s decision. Importantly, P. was not alleged to have engaged in misconduct, and the Court accepted the findings regarding the blurring decision. [Bremner v. Turkey, (2015)] [para. 31-32]
Concerning P.’s public status and prior conduct, the domestic Courts established that P. was not a public figure seeking attention. The Court reiterated the distinction between public figures and private individuals, noting that P., as a police officer, did not seek public attention and was not considered a public figure. The Court acknowledged that civil servants, including law enforcement officers, may face wider criticism in their official capacity but emphasized the need for balance, especially in cases involving alleged misconduct. [Kapsis and Danikas v. Greece, (2017)] [para. 33]
In analyzing the case, the Court considered the CCTV footage’s publication, showing P. in his official capacity during a police intervention. While recognizing the serious public concern about police brutality, the Court noted the absence of allegations of misconduct against P. The Court affirmed that civil servants, including police officers, have a legitimate interest in protecting their private lives, particularly when there are no prior misconduct allegations. The Court highlighted that the Convention does not establish a general rule against police officers’ recognizability in press publications but emphasized the need for a case-by-case balance, considering the content and consequences of the coverage. [Dyundin v. Russia, (2008) and Axel Springer SE and RTL Television GmbH v. Germany, (2017)] [para. 34-35]
In evaluating the method of obtaining information and the content/form of publication in this case, the Court acknowledged that the Applicant company obtained CCTV footage from the nightclub owner, filmed in a public place with unquestioned authenticity. Notably, the case did not involve hidden cameras, distinguishing it from precedents like Bremner, (2015). The Court emphasized the importance of journalistic freedom but underscored journalists’ responsibility to adhere to ethical rules and codes of conduct, considering the potential impact on the right to private life under Article 8 of the Convention. [para. 36-38]
The Court recognized the domestic Courts’ focus on the editorial presentation, noting the Regional Court’s emphasis on the commentary portraying P. negatively. The Court of Appeal considered the publication in the context of the accompanying voice-over. The omission of certain parts of the footage, highlighted by the domestic Courts, was deemed relevant when balancing the rights of the applicant company and P., citing precedents such as Axel Springer AG, (2017) and Wirtschafts-Trend Zeitschriften-Verlagsgesellschaft mbH v. Austria (no. 3), (2005). However, the Court found the argument about the shortened version applicable only to the first publication, as the second article presented a longer video depicting D.’s aggressive behavior. Crucially, the Court noted the broad scope of the injunction, covering both past and future unpixelated CCTV footage publications. The Court of Appeal’s reasoning, tying future publication restrictions to P.’s consent under copyright law, was deemed too general. The Court emphasized that positive coverage did not negate the need for protection, considering the public interest in police use of force coverage. [para. 39-42]
In assessing the consequences of the publication and the severity of the imposed restriction, the Court highlighted the elevated risk of harm posed by online content to human rights and privacy, referencing cases like M.L. and W.W. v. Germany, (2018). The Regional Court justified the injunction based on P.’s claimed personal consequences, citing critical comments from the public and his children. However, the domestic Courts failed to analyze the potential negative consequences of future publications of unedited CCTV footage, regardless of accompanying coverage. [para. 43]
Regarding the severity of the restriction on the applicant company, the Court acknowledged that the order did not prohibit reporting on the police intervention, allowing the use of edited footage. However, it asserted that the order lacked justification, as it failed to adequately balance the competing interests concerning the second publication and any future release of unedited CCTV footage. The Court referenced precedents such as Axel Springer SE, (2017) to support its assessment of the severity of the restriction and the need for a balanced approach in the specific circumstances of the case. [para. 44]
In conclusion, the Court acknowledged that the national Courts, particularly the Regional Court, appropriately considered the relevant criteria from its case law when balancing the conflicting rights under Articles 8 and 10 of the Convention concerning the first publication. The Court declined to substitute its judgment for that of the domestic Courts on these aspects. However, the Court found deficiencies in the domestic Courts’ balancing concerning the second and any future publication. It identified two main points of concern. Firstly, the Regional Court’s consideration was limited to the editorial presentation of the first publication. Secondly, the Court of Appeal failed to conduct a proper balancing exercise for any future publication, asserting a general prohibition on unpixelated coverage without assessing its potential contribution to public debate. [para. 45]
The Court emphasized that the national Courts did not adequately justify the “necessity” of the restriction on the applicant company’s freedom of expression under Article 10(2) of the Convention for the second and future publications of unedited CCTV footage. Consequently, the Court concluded that the interference was not deemed necessary in a democratic society, resulting in a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling in this case appears to reinforce the importance of freedom of expression in the context of journalistic activities while also recognizing the need to balance it with the right to respect for private life. The ruling underscores the significance of assessing each case individually, taking into account factors such as the public interest, the nature of the information, and the consequences of the publication. While acknowledging the legitimate interest of individuals, including police officers, in protecting their private lives, the Court criticized the domestic Courts for not adequately justifying the necessity of the restriction on the applicant company’s freedom of expression concerning future publications. In doing so, the rulings can be seen as an effort to uphold and clarify the boundaries of freedom of the press in reporting on matters of public interest, emphasizing the need for a nuanced and case-specific approach rather than imposing broad restrictions that could potentially hinder journalistic activities.
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