Defamation / Reputation
Niskasaari v. Finland
Closed Expands Expression
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Four journalists recorded and broadcasted a hidden camera interview with a life insurance broker to highlight the industry’s malpractice. The broker sued the journalists claiming that the broadcast harmed and interfered with his private life. The Swiss courts sided with the broker. The journalists appealed to the European Court of Human Rights (ECtHR).
The ECtHR ruled that the interference with the private life of the broker did not override the public interest in information on insurance malpractice.
The plaintiffs are four Swiss journalists who work for an established and popular weekly TV show on SF DRS, a Swiss German channel. In February 2003, in response to public discontent with practices used by insurance brokers, the plaintiffs made a documentary on sales of life insurance.
On February 26, one of the journalists posed as a client and met with a life insurance broker. Their conversation was recorded using hidden cameras. After the conversation, the journalists explained the broker that he was recorded and asked whether he wanted to comment, which he refused. On March 25, 2003, segments of the conversation were broadcast with the broker’s face and voice disguised.
On November 5, 2007, the Swiss court convicted four of the journalists who participated in the recording and making of the documentary and ordered them to pay fines ranging between 150 and 4,775 Swiss Francs; the largest fine was imposed on the chief-editor of the TV show. The court agreed that there was public interest in making the documentary but that the “journalists could have used an approach less damaging to the broker’s private interests.”
On February 24, 2009, the High Court of the Canton of Zurich, acquitted the plaintiffs of the charge of “violation the secret or private domain by means of a film camera,” but upheld the conviction on other issues, and slightly reduced the fines for all applicants.
On April 3, 2009, the plaintiff complained to the ECtHR that their sentence and fines violated Article 10 of the ECHR by disproportionately interfering with their right to freedom of expression.
The ECtHR weighed the right to freedom of expression against the right to private life using six criteria: (1) whether the matter contributed to a debate of general interest; (2) ascertaining how well-known the person being reported on is and the subject of the report; (3) the person’s prior conduct; (4) the method of obtaining the information; (5) the veracity, content, form, and repercussions of the report/documentary; and (6) the penalty imposed.
The ECtHR determined that the subject of the documentary to expose insurance malpractice belonged in the realm of a public interest debate. The Court also noted that the documentary focused on the general practices of insurance brokers rather than solely on the broker in the documentary. The ECtHR reiterated that journalists must abide by ethics standards of the profession regarding veracity, reliability, and facts; which, in this case, had not been contested by the broker. The Court then highlighted that the plaintiffs disguised the brokers face and voice when airing the documentary.
The Court noted that despite the fines, the documentary still aired. With all of these considerations, the ECtHR ruled that the interference with the broker’s private life did not merit the interference in the plaintiffs’ right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR reiterated that journalists may interfere in the private life of a person, as long as it is done in an ethical manner that limits private exposure and is for the purposes of public interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court applied the following test from Axel v Germany on the subject case:
(i) contribution to a debate of general interest
(ii) how well known is the person concerned and what is the subject of the report?
(iii) prior conduct of the person concerned
(iv) method of obtaining the information and its veracity/ circumstances in which the photographs were taken
(v) content, form and consequences of the publication
(vi) severity of the sanction imposed
Case significance refers to how influential the case is and how its significance changes over time.
The ECtHR’s ruling reiterated that public interest journalism is protected by the ECHR, even when it interferes with the right to private life.
Let us know if you notice errors or if the case analysis needs revision.