Case Summary and Outcome

The European Court of Human Rights (ECtHR) ruled that Portugal violated a journalist’s right to freedom of expression through civil and criminal sanctions. A journalist had broadcast, without authorization, images and sound from a criminal hearing of a former government minister in a highly publicized criminal investigation. The Criminal Court of Lisbon fined the journalist for disobedience and ordered her to pay compensation, a decision upheld by the Lisbon Court of Appeal and the Supreme Court of Portugal. In the civil proceedings, the District Court of Lisbon absolved the journalist and held only the television broadcaster liable for compensation. However, the Lisbon Court of Appeal ruled that she should also be held responsible for non-pecuniary damage, a decision later confirmed by the Supreme Court of Justice. The ECtHR found that the Portuguese courts failed to properly balance the journalist’s right to freedom of expression and the then-Minister’s right to privacy and the presumption of innocence. It also considered that the sanctions were disproportionate and unjustified in a democratic society, noting the public interest in the matters discussed in the broadcast. 

Columbia Global Freedom of Expression notes that some of the information contained in this report was derived from secondary sources.

Facts

On November 29, 2015, Tania Alexandra Ferreira e Castro da Costa Laranjo, a journalist for the Portuguese television station, “Correio da Manhã TV” (CMTV), aired a report with audio and images from a hearing by Portugal’s Central Department of Criminal Investigation and Prosecution. The hearing concerned M.M., who was being investigated for corruption and abuse of power related to “golden visas” during his time as a government minister. Ferreira e Castro da Costa Laranjo obtained the recording from another journalist who had access to it in her capacity as part of the criminal investigation.

Ferreira e Castro da Costa Laranjo was charged with disobedience for broadcasting images and sound of the former minister’s hearing without prior authorization, and on September 3, 2019, the Criminal Court of Lisbon found her guilty and sentenced her to eighty day-fines, totalling 880 euros. Referring to the Pinto Coelho v. Portugal (2011) case, the Court held that the journalist’s right to freedom of expression needed to be balanced against M.M.’s rights to privacy and the presumption of innocence, given that the criminal investigation was still ongoing at the time, as well as the general need for proper administration of justice, and held that M.M.’s rights prevailed.

On January 29, 2020, the Lisbon Court of Appeal upheld the lower court’s decision. It noted that the journalist violated Portuguese law by failing to request authorization from the judicial authority or from M.M. before broadcasting the hearing and that she could have informed the public about the hearing without showing images and audio of it.

After the criminal proceedings, M.M. filed a civil liability claim against Ferreira e Castro da Costa Laranjo and the television broadcaster, seeking compensation for the harm caused by the news report. On December 4, 2019, the District Court of Lisbon dismissed his claim against the journalist but ordered the broadcaster to pay M.M. 55,000 euros as compensation for the non-pecuniary loss sustained.

On January 8, 2021, the 6th Section of the Lisbon Court of Appeal overturned the judgment and ordered Ferreira e Castro da Costa Laranjo and the broadcaster to jointly pay 35,000 euros to M.M. for non-pecuniary damage. The Court found that Ferreira e Castro da Costa Laranjo should be held responsible along with the broadcaster, considering that she had been convicted and fined for the same actions in the criminal proceedings brought against her: “[…] it is clear to us that the final conviction handed down in the criminal process must, at the very least, constitute an irrebuttable presumption regarding the facts proven in the criminal judgment, in relation to the convicted party, and in a civil liability action based on the commission of the crime against them, with regard to the existence of the facts that make up the conditions for punishment and the elements of the legal type” (emphasis in the original). [p. 63 of the Lisbon Court of Appeal’s decision]

On May 25, 2022, the Supreme Court of Justice (STJ) confirmed the Court of Appeal’s ruling. The Court found that Ferreira e Castro da Costa Laranjo’s criminal conviction supported a violation of M.M.’s personal rights, finding that considering the right to inform the public had no place in the civil proceedings: “[t]he act of collecting and disclosing unauthorized information, which has been criminally sanctioned by a final judgment, does not give rise to any conflict between the right or freedom of information, on the one hand, and the right to honor or a good name, on the other, as such conduct (due to its criminal sanction) is undoubtedly beyond the limits of freedom of information” [p. 42 of the STJ’s decision]. The STJ also found that the compensation the journalist was ordered to pay with the broadcaster was not excessive.

Ferreira e Castro da Costa Laranjo filed two applications against the Portuguese Republic with the European Court of Human Rights, arguing that the decisions of both the criminal and civil domestic courts had violated her right to freedom of expression and to share information under Article 10 of the European Convention of Human Rights.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Decision Overview

The Fourth Section of the European Court of Human Rights delivered a unanimous decision. The central issue it examined was whether the interference in Ferreira e Castro da Costa Laranjo’s freedom of expression was justified in a democratic society.

The Court applied the tripartite test set out in Article 10 – whether an interference in the right to freedom of expression is prescribed by law, pursues a legitimate interest and is necessary in a democratic society. It accepted that there was an interference with the journalist’s freedom of expression and that the interference was prescribed by law as it was effected through the Criminal Code and Code of Criminal Procedure. It also accepted that the interference pursued the legitimate aims of protecting M.M.’s rights to privacy and the presumption of innocence. Accordingly, it assessed only whether the interference was justifiable in a democratic society, and discussed the principles established in previous cases, including Bédat v. Switzerland (2016), Axel Springer AG v. Germany (2012), and Couderc and Hachette Filipacchi Associés v. France (2015), in outlining the criteria for balancing the applicant’s right to freedom of expression with the protection of privacy and the presumption of innocence.

The Court agreed with the domestic courts that the broadcast material was of considerable public interest, as it related to a judicial investigation into corruption and abuse of power by a high-ranking government official. Referring to Pinto Coelho v. Portugal (2011) and Campos Dâmaso v. Portugal (2008), the Court concluded that, given his position, M.M. “inevitably and consciously exposed himself to a heightened level of scrutiny of his actions by both journalists and the general public”. [para. 14]

The Court ruled that although the criminal proceedings established that Ferreira e Castro da Costa Laranjo breached domestic law by failing to obtain prior authorization and broadcasting excerpts from the hearing – material she received from a colleague interviewed as an auxiliary of the prosecutor – the domestic courts did not explain how the broadcast harmed the former minister given the extensive media coverage, why reporting without showing excerpts would have had a lesser impact, or how it affected the ongoing investigation. It also emphasized that “there were no objections to [the material’s] veracity and authenticity”. [para. 15]

Regarding the sanctions imposed by the domestic courts, citing the cases Medipress-Sociedade Jornalística, Lda v. Portugal (2016), SIC – Sociedade Independente de Comunicação v. Portugal (2021) and Pais Pires de Lima v. Portugal (2019), the Court found that the fines imposed were “significant” and “capable of discouraging the media from discussing matters of legitimate public concern and [had] a chilling effect on the freedom of expression and of the press”. [para. 16] Moreover, relying on the Pinto Coelho case, the Court also found that the sanction imposed in the criminal proceeding — eighty day-fines amounting to a total of 880 EUR — was “disproportionate in view of the particular circumstances of the case”. [para. 17]

Accordingly, given the disproportionate interference with Ferreira e Castro da Costa Laranjo’s freedom of expression, the Court found that Article 10 had been violated.