ECHR: Bédat v Switzerland - No Violation convicting the journalist for publishing the secret documents
12-04-2016, 10:05  / ნანახია: 1141
 
Dirk Voorhoof of Ghent University
The Grand Chamber’s judgment again illustrates that journalists are not above the law, and that a breach of the law in obtaining certain documents or making them public only in very specific circumstances can be fully protected by Article 10 of the Convention (see e.g. Fressoz & Roire v. France, Radio Twist v. Slovakia and Dupuis v. France). In this case the Court again refers to the concept of “responsible journalism”, including the expectation that a journalist in his or her actions of newsgathering shall not breach the law by making information public in cases where somebody else has breached his or her obligation of secrecy and the journalist has obtained the information in a lawful way. 
It is somewhat bizarre that the Grand Chamber considers it as a breach of responsible journalism to publish information with a confidential nature. As any experienced journalist will tell you: almost any information is likely to be confidential. And how can the Court reconcile this approach with the high level of protection of journalistic sources and the protection of whistleblowers? Are journalists from now on acting irresponsible by publishing the information obtained from leaking sources or whistleblowers, and can this be an additional, if not decisive argument, to consider the journalists criminally liable for not respecting the secrecy or confidentiality of that information? 
In fact, the Grand Chamber opts for a kind of circular reasoning. Indeed the starting point is that the journalist is prosecuted for committing a criminal offence acting as a journalist, while the journalist’s defence is that this criminal offence is justifiable in order to purvey his task as public-watchdog in society. Adding the condition that a journalist must act responsibly and by requiring that he shall not breach the law, the scope of the public interest defence of journalists risks to be substantially narrowed down, if not annihilated. 
The use of the concept of “responsible journalism” is also criticized in more general terms in a dissenting opinion in another recent case in which the Court relied on this notion in finding no violation of Article 10. In his dissenting opinion in Rusu v. Romania (8 March 2016) the president of the Fourth Section, judge András Sajó, stated:
To our regret we observe time and again that the concept of responsible journalism (..) results in undermining freedom of the press. And this case is no exception! While there are responsibilities attached to all professional activities, when it comes to the press, the reference to responsible journalism is disturbing (...)”.
 
Secondly, it is remarkable that the Court is not as much considering the pressing social need of the interference at issue, but is rather requesting from the journalist to give evidence that the content of the article has effectively contributed to a public debate. While emphasizing that the journalist in this case “failed to demonstrate” that the article contributed to a debate on a matter of public interest, the Grand Chamber is of the opinion that the authorities do not need to demonstrate that the interference in the journalist’s freedom of expression was effectively necessary. 
For the Grand Chamber it is enough that the article might “in one or another way” influence the investigation, the position of the victims or the objectivity of the trial court, without further specifying were precisely the impact or prejudice is or was to be situated. For the Grand Chamber such influences are an “inherent risk” of making information public that is part of the secret of criminal investigation. And while in other judgments the Court took into consideration whether or not the criminal court was composed of professional judges, in order to evaluate the impact of media coverage on the fair trial principle and presumption of innocence, now the Grand Chamber emphasizes the risk of influencing the trial court “irrespective of its composition”. 
The Grand Chamber chooses rather to refer to the “sensationalist tone” of the article and it is somewhat strange that the Court found it problematic that Bédat had formulated a series of questions around the criminal case at issue “which the judicial authorities were called upon to answer, at both the investigation and the trial stages”, as if these kind of questions were not relevant from a journalistic point of view as well. The consideration by the Grand Chamber that Bédat failed to demonstrate that the article contributed to a debate of public interest is furthermore contrary to the Court’s approach in other cases, in which it stated “that all that matters is whether a report was capable of contributing  to debate on a matter of public interest, and not whether it fully achieved that objective” (Haldimann v. Switzerland).
Of course, the Grand Chamber develops a strong argument, which is the vulnerable situation of the accused person, being held in pre-trial detention and hence not being in a favorable position to initiate a private prosecution or a civil lawsuit against the journalist. This circumstance however cannot justify the action taken by the public prosecutor and cannot legitimize the conviction of the journalist, as this would suggest that that there were no other or better actions that could have been taken by the authorities in order to safeguard the guarantees of M.B.’s right to a fair trial.  One of the dissenting judges gives a few examples of alternative ways of positive action by the Swiss authorities, such as:
changing the trial venue, giving unequivocal instructions to jurors, sequestering the jurors, limiting extrajudicial statements by any lawyer, party, witness, or court official, etc. However expensive and time-consuming these measures might be, they would achieve the aim of ensuring fair trial guarantees and to protect the jury from outside influence, without excessive interference in press freedom”.
 
Finally, it is remarkable that the Grand Chamber expands its approach of balancing the competing interests of privacy protection (Art. 8) and freedom of expression (Art. 10) to the situation of conflicting interest between fair trial (Art. 6) and freedom of expression. The Court indeed considers that analogous reasoning must apply in weighing up the rights secured under Article 10 and Article 6 § 1 respectively (§ 52-53). 
While there is no doubt that Article 8 has a horizontal effect and that the state has a positive obligation in order to secure that other private persons do not interfere with the privacy of fellow citizens or data subjects, Article 6 § 1 and the fair trial principle is of another nature. Article 6 § 1 of the Convention contains indeed a direct obligation for the state authorities themselves to secure fair trial principles, including the presumption of innocence before independent and impartial judges and courts. 
Broadening the scope and enforcement of the presumption of innocence to be respected by private actors in society is a problematic extension of Article 6 § 1 of the Convention, and it further weakens the right of freedom of expression being situated in the frame of conflicting rights, with consequently a wider margin of appreciation for the State authorities to interfere, even by way of criminal prosecution and conviction of journalists. Requiring media reporting about crime and court cases, including major crime and eventually acts of terrorism, to uphold the presumption of innocence as it is required from the judiciary, is a big step to take. 
Actually it is a too big step and it contrasts with the Court’s viewpoint that “it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them”. 
Furthermore, imposing on media and journalism the same or a similar obligation to uphold the presumption of innocence as it applies to the judiciary is not only a mission impossible, it also confuses the different roles and functions of the media and the judiciary. It is up to the authorities to guarantee within the administration of justice the highest level possible of securing the impartiality and independence of judges and to have the presumption of innocence respected by them. 
The duties and responsibilities of media and journalists should not be derived from Article 6 § 1 of the Convention, but should be evaluated from the scope of Article 10 § 2 of the Convention. From that perspective indeed it is and it should remain “true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings” and the scrutiny by the European Court should be a strict one. 
No doubt that journalists and media are to bear in mind the presumption of innocence when reporting and commenting on pending criminal proceedings, it is certainly one of the basic principles of journalistic ethics and may induce their civil liability. Criminalizing journalists and media because of the publication of (leaked) information from criminal investigations, because this kind of information as such, in abstracto and inherently risks to affect the rights guaranteed by Article 6 § 1 of the Convention, creates a new legal standard for court and crime reporting in Europe. In Belgium e.g. a journalist who obtained information in similar circumstances as in Bédat v. Switzerland would not be convicted, as there is only a criminal offence of abuse of access to criminal files when the files are forwarded or made public with the intention and with the effective consequence to harm the criminal investigation or the privacy rights or other rights of other parties involved in the case (Article 460ter of the Criminal Code). 

The new standard introduced by the Grand Chamber makes it possible that state authorities will develop a stricter policy and will prosecute, as part of their positive obligations under Article 6 § 1, media and journalists because of publishing leaked information from criminal files, even in cases of media reporting about major crime that has shocked society.

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