Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Mixed Outcome
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The European Court of Human Rights found no violation of the right to freedom of expression where a journalist was fined 800 Swiss Francs for publishing an article about a confidential diplomatic strategy paper. The fine was imposed pursuant to a law criminalizing the publication of “secret official deliberations”. The European Court of Human Rights gave Switzerland a certain margin of appreciation in how to deal with preserving confidential or secret documents. However, the European Court of Human Rights also criticised the fact that the document was presented in a misleading and sensationalist manner, and took note of the modest nature of the fine against the journalist, in finding the journalist’s conviction to be a proportionate restriction on the right to freedom of expression.
Between 1996 and 1997, there were ongoing negotiations between the World Jewish Congress and Swiss Banks about how to handle compensation due to Holocaust victims for unclaimed assets in Swiss bank accounts. In December 1996, the Swiss Ambassador to the United States drafted a “strategy paper”, classified as “confidential”, discussing strategies to be adopted by the Swiss Government in the negotiations. The paper was sent to the head of the relevant task force at the Federal Department of Foreign Affairs, as well as a number of other State bodies and Swiss diplomatic missions.
The applicant journalist in this case obtained a copy of this “strategy paper,” and published two articles discussing the leaked document. It was clear that he could not have obtained the document without someone breaching official secrecy. The applicant’s articles were entitled “[a]mbassador insults the Jews” and “[t]he ambassador in bathrobe and climbing boots puts his foot in it”. These articles cited lines from the document out of context, and presented the ambassador as someone who was unsuited to the role. Three other newspapers also published articles that reproduced much of the confidential report verbatim, but these were not subject to any subsequent legal proceedings.
A complaint was filed to the Swiss Press Council, a media self-regulator, which found that the article published by the applicant was in violation of the “Declaration on the rights and responsibilities of journalists”. In its decision, the Swiss Press Council noted that although diplomatic reports were confidential by right, they would not merit a high degree of protection in all cases. It also noted the public interest in the document. Nevertheless, it also concluded that the article was irresponsible.
In November 1998, the Zurich District Office fined the applicant 4,000 Swiss Francs for publishing official deliberations. The fine was reduced to 800 Swiss Francs by the Zurich District Court. In its judgment, the Zurich District Court took into account the applicant’s right to freedom of expression but still found this to be outweighed by the fact that the document was secret in a formal and substantive sense, and was presented in a sensational way. The fine was reduced on the basis of the court’s assessment that the offence was not a very serious one, and the applicant did not publish a secret that threatened the country’s very foundation.
This was appealed to the Federal Court, which affirmed the Zurich District Court’s judgment. The applicant journalist then filed an application with the European Court of Human Rights, claiming there had been a violation of his right to freedom of expression. Following a judgment from the Chamber of the European Court of Human Rights, which found no violation of the right, the case was referred to the Grand Chamber.
The Grand Chamber of the European Court of Human Rights (Court) considered whether the Applicant’s conviction under the Swiss Criminal Code for publication of “secret official deliberations” violated Article 10 of the European Convention on Human Rights (Convention).
There was no dispute that the conviction was an “interference” with the Applicant’s rights under Article 10 of the Convention. The Court also found that the interference was “prescribed by law” (namely Article 293 of the Criminal Code). It was left for the Court to decide whether the interference could be justified on the basis that it pursued a “legitimate aim”, and was “necessary in a democratic society”.
With regard to whether the interference pursued a “legitimate aim”, the Court was not convinced that the applicant’s conviction sought to protect “national security” or “public safety”. The Court also stated that these concepts “need to be applied with restraint and to be interpreted restrictively and should be brought into play only where it has been shown to be necessary to suppress release of the information for the purposes of protecting national security and public safety”. [para 54] The Court also noted that there were no insult or defamation proceedings brought in this case, so it could not find a legitimate aim of protecting the “reputation or rights of others”. However, the Court did find the text of Article 10 of the Convention to support a legitimate aim of preventing “disclosure of information received in confidence.” With regard to this legitimate aim, the Court clarified that it encompasses “confidential information disclosed either by a person subject to a duty of confidence or by a third party and, in particular, as in the present case, by a journalist.” [para. 61]
The main question for the Court was whether the interference was “necessary in a democratic society”. The Court first noted the paramount importance of the press in a democratic society, and the role it plays as a “public watchdog”. However, the Court also reiterated that the protections afforded to journalists in relation to reporting issues of general interest are subject to the proviso that “they are acting in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism”. [para. 103] The Court went on to state that these considerations play a particularly important role nowadays because of the influence wielded by the media in contemporary society. The Court noted that “not only do they inform, they can also suggest by the way in which they present the information how it is to be assessed. In a world in which the individual is confronted with vast quantities of information circulated via traditional and electronic media and involving an ever-growing number of players, monitoring compliance with journalistic ethics takes on added importance.” [para. 104] The Court also highlighted that, in this case, because rules concerning the preservation of confidential or secret sensitive information differed between countries in the Council of Europe, a certain margin of appreciation was to be given.
The Court went on to highlight that the present case concerned the dissemination of confidential information by the media. In this regard, the Court highlighted that “[p]ress freedom assumes even greater importance in circumstances in which State activities and decisions escape democratic or judicial scrutiny on account of their confidential or secret nature. The conviction of a journalist for disclosing information considered to be confidential or secret may discourage those working in the media from informing the public on matters of public interest. As a result, the press may no longer be able to play its vital role as ‘public watchdog’ and the ability of the press to provide accurate and reliable information may be adversely affected”. [para. 110]
To determine whether the conviction was none the less “necessary in a democratic society,” the Court took the following factors into account: (a) the interests at stake in the case, (b) the review of the measure by the domestic courts, (c) the conduct of the applicant, and (d) the proportionality of the penalty.
The Court noted that this case differed from several other cases because the content of the document was completely unknown to the public. The Court went on to note that this case concerned the balancing of two public interests: “the interest of readers in being informed on a topical issue and the interest of the authorities in ensuring a positive and satisfactory outcome to the diplomatic negotiations being conducted.” [para. 116] The Court could not dispute that the articles contributed to a debate of public interest, namely a debate on the issue of the unclaimed assets of Holocaust victims. However, the Court also noted the importance of confidentiality to the smooth functioning of diplomatic relations. In this context, publishing a report classified as “confidential” could have a significant impact on foreign policy, and could render the relevant official a persona non grata in the host country. The Court accepted that the confidentiality of such documents will not be protected in all cases, and sometimes it is acceptable that they are published in order to contribute to public debate. On this occasion, however, the harm posed by the article outweighed the nature and form of the articles. The Court found that the articles were liable to cause “considerable damage” to Switzerland’s interests, including in their ongoing negotiations with the World Jewish Congress and its American allies. The Court focused on the vocabulary used by the applicant, and the likelihood that it would provoke a negative reaction from these stakeholders.
In relation to the review by the domestic courts, the Court was satisfied that they had weighed up the relevant interests in line with Article 10 of the Convention. As to the conduct of the applicant, the Court looked at the manner in which the report was obtained, as well as how the information was published. The Court noted that the document was not obtained illegally, but reasoned that the fact that a journalist had not acted illegally was not sufficient to prove that they had complied with their duties and responsibilities. In the present case, the Court reasoned that the applicant could not, as a journalist, claim in good faith to be unaware that disclosure of the document would amount to a criminal offence. The Court also took issue with how the information was presented in the article itself, highlighting the following four shortcomings; (i) the content of the articles was reductive and truncated, (ii) the vocabulary used started a rumor that the ambassador was anti-Semitic in the context of negotiations concerning the compensation of Holocaust victims, (iii) the editing was sensationalist, and not appropriate for a story as important and serious as the one being presented, and (iv) the articles were inaccurate and likely to mislead the reader. The Court reasoned that the form that the articles took “considerably detracted from the importance of their contribution to the public debate protected by Article 10 of the Convention.” [para. 152] Finally, the Court examined whether the penalty was proportionate. This punishment came after the articles were published so did not serve as a prior restraint on the journalist, and the fine imposed was relatively small. In light of this, the Court found the punishment to be proportionate despite its criminal nature.
Taking all the above into account, the Court found no violation of the right to freedom of expression under Article 10 of the Convention.
Judge Ziemele wrote separately to concur with the judgment, but also to clarify her position on one specific point. She stated that it was important to take into account the international interests being weighed in this case rather than focusing, as the judgment did, on the interests of the Swiss public.
Judge Zagrebelsky wrote separately to dissent (joined by Judge Lorenzen, Fura-Sandstrom, Jager and Popovic). The dissent argued that the Court should have found a violation of the right to freedom of expression. To support this conclusion, the dissent highlighted the fact that the majority relied on a hypothetical harm to diplomatic relations to justify the interference. They reasoned that this flew in the face of the principle that an interference must be properly justified, and limitations must be construed restrictively. The dissent also criticised the majority for taking issue with the form chosen by the journalist to present the story, which contradicted the precedent of the Court against interfering with the techniques adopted by journalists.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome. Ultimately, the Court attempted to balance two interests that promote freedom of expression. Firstly, there was an interest in the State not interfering with the publication of confidential documents that contributed to a debate of public interest. Secondly, there was an interest in the protection of secrecy or confidentiality in the context of diplomatic relations, which allows for a freer and more frank discussion to take place between relevant officials in the promotion of foreign policy. In its judgment, the Court provided some clarifications that could promote investigative journalism in the future. For instance, the Court recognized that “preventing all public debate on matters relating to foreign affairs by invoking the need to protect diplomatic correspondence is unacceptable.” [para. 128] Thus, confidential official documents will not be protected against disclosure “at all costs”. Nonetheless, this judgment represents a significant negative precedent for media freedom under the Convention. In its judgment, the Court stated that it was not for them to “substitute their own views for those of the press as to what technique of reporting should be adopted by journalists”, yet went on to contradict this statement by taking issue with a number of techniques used by the applicant in his articles. The Court also did not find issue with the use of criminal laws to penalize a journalist for publishing an article that sought to contribute to a debate of public interest.
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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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