Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Contracts Expression
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The European Court of Human Rights found no violation of Article 10 of the European Convention on Human Rights where three Italian journalists had been convicted, and had their property subject to search and seizure, because they had intercepted confidential police radio communications. By intercepting the police force’s radio frequencies, the journalists were able to arrive at the scene of police activity. The Court concluded that the sanctions were not disproportionate, since the journalists’ sentences were suspended. The Court also clearly stated that journalists should adhere to the principles of “responsible journalism”, including the concept that where a journalist acts in a way that is in breach of the criminal law they must know they are exposed to sanctions.
Three journalists of a local Italian newspaper regularly made use of radio equipment in order to quickly reach relevant places where the police were carrying out law enforcement activity.
On August 1, 2002, the journalists intercepted a police radio communication calling on police cars to go to a place where some arms were allegedly being stocked illegally. Two of the three journalists reached the place while the police were on the scene. The police searched the journalists’ car pursuant to a search warrant and found two radio transceivers. Then, the police searched their newsroom and found two pieces of radio equipment tuned in to the authorities’ frequencies.
Subsequently, two of the three journalists were charged under Articles 617, 617bis and 623bis of the Italian Criminal Code for having illegally installed devices for intercepting the communications between the police centres and the mobile squads. The third journalist was charged under Articles 617 and 623bis of the Criminal Code for having acquired such communications.
The journalists were acquitted in the first instance trial as the judge relied on Article 15 of the Italian Constitution, which he suggested only protected confidential communications. According to the first instance judge, the communications under analysis could not be considered confidential since the police devices did not guarantee any secrecy and the radio transceivers themselves were not illegal to possess.
The public prosecutor and the attorney general contested this judgment, arguing that the confidential nature of these communications was evident in the need to protect security and public order. They also relied on the fact that the police spoke in code, the journalists had to buy a specific type of radio device to intercept the police frequencies, and two law decrees effectively prohibited the interception of police communications. In May 2007, the Appeal Court of Milan sentenced two of the journalists to one year and three months in prison, and the third journalist to six months. The sentences were suspended.
The journalists appealed this decision before the Italian Court of Cassation, stressing again that the communications in question were transmitted through unencrypted radio frequencies and thus could not be considered confidential. Moreover, the journalists’ actions were committed in the course of their journalistic activity and were therefore justified and constitutionally protected.
On October 28, 2008, the Court of Cassation rejected the journalists’ appeal. With regard to freedom of the press, the Court of Cassation stated that the right of journalists to impart information could outweigh the public interest protected by criminal law in cases of defamation, but not in cases of illicit interception of police communications.
In 2009, the journalists filed an application to the European Court of Human Rights alleging a violation of Article 10 of the European Convention on Human Rights (ECHR) due to the search of their vehicle and their newsroom, the seizure of their radio transceivers, and the penalties imposed on them. The Italian Government argued, among other things, that the journalists’ Article 10 ECHR rights had not been interfered with because they were not penalized for having expressed an idea or having published information, but rather for having illegally intercepted confidential communications.
The European Court of Human Rights (Court) began by finding that the case was admissible but, in doing so, refused to state whether Article 10 of the European Convention on Human Rights (ECHR) was actually engaged by the facts of the case. This was because if the Court were to find that there was an interference with Article 10 ECHR in this case, it would still find such an interference to be justified (i.e. not a violation of Article 10 ECHR).
The Court proceeded on the basis that there had been an interference with Article 10 ECHR, despite its doubts. The Court applied the three-part test for Article 10 ECHR cases to the present facts.
Firstly, the interference was prescribed by law. The measures of search, seizure and the penalty of suspended imprisonment against the journalists were all provided for by the Italian Criminal Code. Secondly, the interference pursued legitimate aims under Article 10 (2) ECHR, in particular the protection of the rights of others, the protection of national security, the defence of public order, and the prevention of crime.
Finally, the Court considered the necessity in a democratic society of the kind of measures taken against the journalists. The Court reiterated that the protection offered by journalists under Article 10 ECHR depended on their acting in good faith, so as to provide accurate and reliable information, in accordance with the principles of “responsible journalism”. According to the Court, this concept not only covered the content of information collected and/or published by journalists, but also the lawfulness of the conduct of journalists (e.g. their public relations with the police). The Court reasoned that despite their essential role in a democratic society, the media cannot be released from the duty to respect criminal law on the ground that Article 10 ECHR provides them impervious immunity when they conduct journalistic activities. The Court noted that Article 10 ECHR sets out limits to the protection afforded to the right to freedom of expression which remains valid even where the press reports on serious questions of general interest.
The Court reiterated that in cases of this nature, it must take several criteria into account; namely the interests at stake, the examination of the measure by the domestic courts, the conduct of the applicant, and the proportionality of the penalty imposed. In this case, the Court determined that the interests that were to be weighed were, on the one hand, the public interest in the proper functioning of the police and, on the other hand, the interest of readers in receiving information. The Court then went on to distinguish between the weight to be attached to the public interest in stories carried in local newspapers compared to those that are of general and historical interest. The Court also noted that the journalists were not prohibited from publishing the relevant information (the conviction was for possessing and using radio equipment illegally). The Court took into account the fact that the sentences were suspended, and concluded that the penalties did not appear to be disproportionate.
In relation to the concept of “responsible journalism”, the Court observed that such a concept “implies that, when the behavior of a journalist goes against the duty to respect the criminal laws, he must know that he is exposed to legal sanctions, including criminal sanctions.” [Para. 64]
In light of the reasons set out above, the Court concluded that the sanctions imposed on the journalists did not violate Article 10 ECHR, and the domestic courts made an appropriate distinction between the journalists’ duty to respect domestic law and their pursuit of journalistic activity.
Concurring opinion of Judge Spano
Judge Spano agreed with the ultimate outcome of the Court’s judgment, but wanted to add some further reasoning. He agreed that investigative journalism was important to a democratic society but journalists could not enjoy an exclusive criminal immunity simply because the offense was committed in the exercise of journalistic duties. Judge Spano stated that he would not have had any difficulty in finding an interference in this case since Article 10 ECHR protected pre-publication activities.
Judge Spano went on to criticize the Court’s application of the relevant criteria to the present facts. He criticized the simplistic distinction between information spread by local rather than national newspapers. He reasoned that the Court should have focused on the nature of the confidential information that the journalists were trying to obtain and disseminate to the public. He observed that “there are situations in which Article 10 ECHR may justify journalists choosing to adopt aggressive investigative strategies in the workplace, which may involve access to confidential information, if there is a strong public interest in disseminating the information in question, for example when trying to shed light on corruption or the illegal activities of government officials or elected officials. In addition, the fact that the publication of the newspaper is aimed at a local community is in my opinion irrelevant, since the content of the newspaper in question was published online.” [Para. 8] Nonetheless, Judge Spano still concluded that the information in this case was not fundamental to the general interest. Finally, he criticized the Court for not properly holding the Italian courts to account for insufficiently balancing the competing interests at stake in this case.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts freedom of expression by upholding criminal sanctions against journalists for intercepting police radio frequencies. The Article 10 ECHR protections that are afforded to controversial and potentially illegal practices adopted by journalists were at the core of other European Court decisions in 2016. For example, in Boris Erdtmann v. Germany, a journalist was convicted for carrying a weapon onboard an airplane to check the effectiveness of security checks at German airports. In Salihu v. Sweden, a journalist was convicted for buying a firearm for an article illustrating how easy it was to buy weapons in Sweden. In these cases, the journalists’ convictions were found not to be violations of Article 10 ECHR, with the Court clearly stating that journalists should not be treated as being above the law. Perhaps most concerning in this case is the Court’s unwillingness to clarify whether pre-publication activity that is carried out by journalists, such as the interception of confidential communications, will be protected under Article 10 ECHR.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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