Access to Public Information, Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention, Surveillance
Sarney v. O Estado de São Paulo
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The European Court of Human Rights (ECtHR) held that there had been a violation of Article 10 in circumstances where journalists had been convicted and fined for disseminating information obtained illegally but where that information was in the public interest, on a matter of political debate and about a public figure.
The Court reiterated that interference with freedom of expression might have a chilling effect on the exercise of that freedom, an effect that would not be negated by the imposition of even a moderate fine.
French journalists Jérôme Dupuis and Jean-Marie Pontaut, together with publishers Librairie Arthème Fayard, brought a complaint against the French government for alleged violations of Article 6 and Article 10 of the European Convention on Human Rights (ECHR) following the failure of appeals against their convictions for handling information obtained in breach of the secrecy of a judicial investigation or in breach of professional confidence.
In March of 1982 an “anti-terrorist unit” was established by the French government that engaged in wire tapping from 1983 to 1986. In 1992, a magazine published a note alleging that the phone lines of certain lawyers and journalists were tapped through this unit, and published a list of those who were under surveillance. A judicial investigation was opened in February 1993 and G.M., deputy director of the French President’s private office at the time of the tapping, was placed under formal investigation on suspicion of invasion of privacy.
Mr Pontaut and Mr. Dupuis published a book on the subject of the surveillance activities and G.M. brought a criminal action against the applicants “accusing them of handling documents obtained through a breach of professional confidence, of knowingly deriving an advantage from such a breach and of handling stolen property.” The applicants refused to reveal their sources for the book, but denied obtaining any information illegally.
The Court of first instance (Paris tribunal de grande instance) found that the type and nature of the published documents were such that the applicants could not have obtained them legally and found them guilty of handling information obtained via a breach of of the secrecy of the investigation or through a breach of professional confidence and imposed a fine. However, the applicants’ book continued to be published and no copies were seized.
The Paris Court of Appeal upheld the judgment and a subsequent appeal to the Criminal Division of the Court of Cassation on points of law was dismissed. The journalists and publisher applied to the ECtHR.
The applicants argued before the ECtHR that the convictions were an unjustified and unnecessary interference with their Article 10 rights. The publication had not prejudiced G.M.’s presumption of innocence nor did it breach the secrecy of the judicial investigation which had already been ongoing for three years. The government countered that the interference was prescribed by law under the criminal code and was necessary to protect the rights of others and for maintaining the authority and impartiality of the judiciary. Further, it argued, the public’s right to freedom of information had not been impaired because the publication of the book had continued.
The Court held that there had been a violation of Article 10 of the Convention and that the judgment against the applicants constituted a disproportionate interference with their right to freedom of expression and therefore it was not necessary in a democratic society.
The Court easily found that the interference was prescribed by law (under the criminal code) and pursued the legitimate aims of protecting the rights of others and ensuring the proper administration of justice. The main question for the Court was whether this interference was necessary in a democratic society. The Court emphasized the essential role played by the press in a democratic society in imparting information and ideas on all matters of public interest, specifically, “[t]he promotion of free political debate is a fundamental feature of a democratic society.” However, the right to freedom of expression is not unfettered and must respect the rights and reputation of others including at Article 6 the right to a fair trial, which included an impartial tribunal.
“As a matter of general principle, the ‘necessity’ for any restriction on freedom of expression must be convincingly established,” the Court said acknowledging that it is for the national authorities to assess whether there is a ‘pressing social need’ for the restriction. The national authorities enjoy a margin of appreciation but in the context of the press this must be balanced against the interest of democratic society in ensuring and maintaining a free press. Similarly the interest of maintaining a free press is an important factor in determining whether the restriction is proportionate to the legitimate aim pursued.
The Court deferred to the domestic courts’ determination that the journalists could not have obtained the information lawfully and noted that although the press is given great latitude in reporting on matters of the public interest, it too must act within the constraints of the common criminal laws. Even so, the Court found that, by the time it was revealed in the publication, it was already publicly known that G.M. had been placed under investigation and moreover the Government had failed to show how the disclosure could’ve had a negative impact on G.M.’s right to presumption of innocence or on his conviction and sentence almost 10 years after publication during which time G.M. regularly commented on the case in press articles.
Although journalists should be punished for wrongdoing, when that wrongdoing contributes to important public debate Article 10 protects their right to divulge such information provided they are acting in good faith, on accurate facts and provide reliable and precise information in fulfilling their vital role as public watchdogs.
The Court considered that the nature and severity of the penalty were also factors to be taken into account when assessing the proportionality of the interference. Although relatively moderate, the fines in this case did not appear to have been justified and did not negate the fact that interference with freedom of expression may have a chilling effect on that freedom.
As the Court found a violation under Article 10 they did not find it necessary to discuss the complained of violation of Article 6 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by finding that the conviction of journalists for the publication of information likely obtained illegally and the imposition of a moderate fine constituted a violation of Article 10. In so doing, the Court emphasized the importance of a free press and the role it plays in a democratic society as a social watchdog in contributing to matters of public interest, in particular important political debate.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Article 226-13, 226-31, 321-1, 321-9 to 321-12
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
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