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Journalistic provocation before the European Court of Human Rights

Journalistic provocation – in spite of being ethically and legally controversial – frequently constitutes the only method to make irregularities known and to shed light on socially significant matters. No legal definition and no regulations in this scope cause numerous problems in the legal assessment of journalistic provocation. However, some interpretative guidelines can be found in the judgment of the European Court of Human Rights of February 24, 2015 in the case of Haldimann, et al. v. Switzerland.

This time, the problem of the boundaries of journalistic provocation emerged in Switzerland. The publisher of the “Kassensturz” program dealing with consumer protection decided to perform a journalistic provocation in order to show unfair practices employed by insurance agents. One of the journalists, posing as a customer, arranged a meeting with an agent in a room with two hidden cameras installed. At one point, the program’s publisher showed up in the room and notified the agent that the meeting was being recorded – the agent refused any explanation to the camera. The recording on which the agent’s face was obscured and his voice changed was broadcast during the aforementioned program. The actions taken by the journalists were met with a negative reaction from the Swiss court – for using hidden cameras the court imposed on the journalists participating in the provocation a fine of 15 times the daily fine in the amount of, respectively, 350, 200 and 100 Swiss Francs. The Swiss Federal Court upheld the penalty arguing the journalists performed the provocation by means of disproportionate measures. Despite the fact that in the opinion of the Court the public’s interest – important information for consumers – prevailed over the individual interest, the journalists could have resorted to less invasive measures towards the agent to obtain this information. The journalists, however, did not agree with this position and requested the European Court of Human Right to protect their rights, citing the violation of Article 10 of the Convention – i.e. freedom of expression.

The judges in Strasbourg did not subscribe to the view of the Swiss Federal Court and determined that in the case of the journalists’ freedom of speech was infringed. In the statement of reasons, we can read the public interest prevailed over individual interest and was only violated to a limited extent. The journalists were motivated by the intention to show a socially important topic and the provocation itself focused on showing an anti-consumer practice and not a specific person. What’s more, the Court did not agree with the argumentation on the proportionality of measures and stressed that the journalists obscured the face, changed the voice and chose a place that prevented individual identification. For those reasons, the interference in the private life of the agent was not as significant as to prevail over the public’s interest consisting in presenting the unfair agent practices. Referring to the penalty imposed on the journalist, the Court stated that the conviction itself may dissuade journalists from raising important problems or expressing criticism – which in this case constitutes freedom of speech infringement.

The decision in the case of Haldimann, et al. v. Switzerland is the first judgment in which the Court addressed the use of hidden cameras without the consent and knowledge of the interested party. It will, without a doubt, impact the assessment of journalistic provocations in the future, also in Poland. In the context of the Court’s judgment, it is worth mentioning that such acts are permissible so long as they are carried out having the public’s interest in mind and when measures allowing the protection of individual “heroes’” interests have been employed. Proportionality, therefore, is key and journalists shouldn’t overuse provocation as a means of obtaining information.



#echr #journalistic provocation #proportionality

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