Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
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The European Court of Human Rights held that a journalist’s freedom of expression was violated when she was criminally penalized for including a recording of a trial in her TV-report without obtaining permission from the relevant state authorities. The journalist’s report alleged that judges made mistakes in convicting an 18-year-old man of aggravated theft, and used audio-recordings of witness testimonies and the judges’ statements to support her allegations. After the report’s broadcast, the journalist was charged and later convicted for failure to obtain permission to broadcast a trial recording and sentenced to pay a fine of € 1,500.
Pinto Coelho, a journalist and a crime reporter for a Portuguese television channel, reported on a criminal proceedings against a 18-year-old man who was convicted of an aggravated theft. Coelho contested the conviction and claimed that the presiding judges had made mistakes. To support her position, Coelho included in her report the extracts of sub-titled sound recordings of the prosecution and defense witnesses, in which their voices and those of the three judges were digitally altered.
After the report was broadcasted, the public prosecutor brought charges against the journalist and the managers of her news program for their failure to obtain authorization to publicly broadcast the footage and the recordings of the trial in violation of Article 88 of the Code of Criminal Procedure and Article 138 of the Criminal Code.
In August 2008, the District Court of Oeiras found Coelho guilty of disobeying a legal order and ordered her to pay a fine of € 1,500. It held that press freedom was not absolute and to the extent that Coelho was a trained lawyer and a journalist specializing in judicial affairs, she knew that the transmission was prohibited by law. [16-17] The Lisbon Court of Appeal later upheld the decision and then in February 2011, the Constitutional Court dismissed a further appeal by Coelho
In July 2011, Coelho filed an application with the European Court of Human Rights, arguing that her conviction for the non-authorized use of the court recordings violated her right to freedom of expression under Article 10 of the European Convention on Human Rights.
The Court ruled that the interference with the journalist’s right to freedom of expression was “prescribed by law” as it was pursuant to Article 88 of the Portuguese Code of Criminal Procedure, which pursued the legitimate aim of protecting the proper administration of justice and the rights of others. However, the majority concluded that it was undeniable that Coelho’s conviction was an interference with her right to freedom of expression.
As there where two fundamental rights at stake, namely the right to access information on matters of public interest and on the other hand, the right to privacy and the preservation of impartiality of the judiciary, the Court saw it necessary to strike a fair balance between these competing rights.
It held that the nature of the news report was clearly a matter of public interest but as a journalist, Coelho had duties and responsibilities in disseminating the information. Specifically, the Court presumed that Coelho was aware that the distribution of court recordings was subject to prior judicial authorization.
Meanwhile, the majority took into account Coelho’s lawful conduct in obtaining the recording, as well as the fact that she had distorted the voices in order to prevent identification by the public. Furthermore, the government argued that the requirement of prior judicial authorization was to protect the proper administration of justice. But the Court held that because the criminal proceedings were already concluded, the government failed to show that the public disclosure of the recordings could have a negative impact on the proper administration of justice.
In addition, the Court considered the severity of the fine against Coelho. It held that while a fine of € 1,500 may seem modest, it could nonetheless have a deterrent effect and dissuade journalists from contributing to public discussion.
Based on the foregoing reasons, the Court’s majority found Portugal in violation of Article 10 of the Convention.
Judge Zupančič dissented with the majority and criticized the Court for its failure to properly strike a fair balance between the right to freedom of expression and impartiality of the judiciary.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The discussion may potentially have implications for jurisdictions, such as England and Wales which continue to prohibit the transmission of recordings of criminal trials. 
 Hugh Tomlinson QC, Case Law, Strasbourg: Pinto Coelho v. Portugal (No.2), Open Justice, Article 10 and Broadcasting recordings of hearings, Inforrm’s Blog (March 26, 2016)
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