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“Smile! You’re on candid camera!” Journalistic provocations versus privacy protection in the ECHR’s decision in Bremner v. Turkey

A hidden camera in the hands of a journalist is a controversial tool. Such methods of gathering materials may raise objections as to their compliance with the journalistic ethics and standards. On the other hand, it is often the only way to gather information on important matters. Many would have never seen the light of day, had journalists not used such “radical” privacy intrusive means.

Does the freedom of the press legitimise such actions? How about an inevitable conflict between the right to inform/be informed and the right to privacy? What are the criteria for reconciling which of the above values shall take precedence?

The European Court of Human Rights had to answer this and many other questions in the recent case Bremner v. Turkey (judgement of 13 October 2015, complaint No 37428/06).

The case concerned part of a documentary on “foreign salesmen selling religion,” prepared with a hidden camera. The documentary broadcast on Turkish TV in June 1997 presented the plaintiff – Dion Ross Bremner – an Australian, who in the 90’s was a correspondent for an Australian newspaper in Turkey and who also worked in a Christian bookstore and was involved in the activities of the local Christian community. The covert recording showed Bremner during a meeting with people “who wanted to know more about Jesus.” Following the broadcast, Bremner was accused of offending “Allah and Islam.” Though he was cleared of the charges, Bremner brought proceedings against the documentary authors and producers. Because the Turkish courts considered the recording justified on public interest grounds, dismissing the claim, Bremner brought an action before the European Tribunal for Human Rights.

In his claim, Bremner indicated that making a covert recording, with his face clearly visible, along with an offensive comment, constituted an infringement of his privacy rights (Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms). Also, he raised the charge of infringement of Article 6 (the right to a fair hearing), Article 9 (freedom of religion) and Article 10 (freedom of expression).

In its judgement, the Tribunal stated that making covert recordings, without the knowledge and permission of the recorded persons, represented an interference with the exercise of the right to privacy, protected on the basis of Article 8 of the Convention. As stated by the Tribunal, Article 8 has both negative positive aspects. It imposes a ban on the state on interference with the privacy right but at the same time an obligation to provide an adequate framework for its existence, including ways for the protection of privacy, also in relations between individuals. The Tribunal stated in the case at hand Turkish authorities had not undertaken any “weighing” of values in accordance with the specification in Article 8, par. 2 of the Convention (which stipulates that there shall be no interference by a public authority with the exercise of [privacy] right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others).

Such “weighing” of values and dispute resolution became the subject of the Tribunal’s considerations. First, the Tribunal analysed the disputed documentary. It stated although it included offensive messages and was very critical, this was not hate speech and remained within the limits of the freedom of expression. Further, the documentary’s subject matter could, in fact, be an issue of public interest. However, the Tribunal had reservations as to the form of obtaining the material – the recording was made with a hidden camera, during a closed meeting and Bremner’s face was not obscured.

The Tribunal admitted that using hidden cameras by journalists could be an important tool for gathering information and did not question the tool as such. It did, however, indicate, that due to their “intrusive” nature, such tools should only be used in the cases justified by an important issue of public interest and as a last resort. The Tribunal did not find any justification for disclosing Bremner’s face in the documentary. Especially that, unlike what Turkish courts and authorities claimed, in the Tribunal’s view, Bremner was not a public figure. Even though he was a journalist, he attended the meeting independently, as an organiser of a religious gathering.


Undoubtedly, the Tribunal’s judgement refers to the standards supported by earlier rulings concerning the resolution of disputes between the freedom of press and protection of privacy rights (e.g. cases: Von Hannover v. Germany, complaints 40660/08 and 60641/08Axel Springer AG v. Germany, complaint 39954/08).

Notably, the Tribunal’s decision did not resolve whether using ambushing tools for gathering information, like hidden cameras, will always be an unacceptable infringement of the privacy right. However, it emphasised such tools should be used by the media with due care and caution, in exceptional cases, for important public interests and with the principle of proportionality. In light of the Tribunal’s judgement it is always important to assess whether a given case to which the material refers is indeed the subject of public concern, whether it is possible to obtain certain information by another source or ensure that the interference with the privacy is as little as possible (e.g. by obscuring faces/changing the recorded person’s voice).

Such an assessment was undertaken by the Tribunal at the beginning of this year, in an earlier case: Haldimann et al. v. Switzerland(complaint No 21830/09) which we also discussed on our blog. As a reminder, the case involved similar facts – journalist materials obtained with a hidden camera. It was the first case in which the Tribunal analysed the admissibility of using such tools for gathering information by the press. In that case, journalists posing as customers recorded an insurance agent in his office. The recording was used in a program on unfair practices employed by insurance agents. What distinguishes this case from the Bremner’s case? First, the material was directed not against a particular person and was only part of a program on an important social issue. Second, unlike in the case of Bremner, the agent’s face was obscured and his voice was changed so his identification was practically impossible. For those reasons the Tribunal ruled in that case the privacy protection could not outweigh the freedom of press. It is also worth noting (though it was not the subject matter of the Tribunal’s considerations) that both cases were different due to the location of the journalistic provocation. In the Haldimann’s case the recording was made in an office, while in the Bremner’s case the recording of a religious agitation was made in Bremner’s flat. Although Article 8 refers not only to private residences but to institutions as well, it seems that in the former case the privacy protection is weaker.


The Tribunal’s ruling in both cases is an important voice of reason in the discussion on the limits of journalistic provocations, especially now that “surveillance” is reality. One shall not forget that using such tools requires constant balancing between public interests and privacy protection and that an assessment has to be made as to the extent to which the interference with private life of a particular person will serve the public interest and not only make the material attractive. This issue takes on even greater significance in situations where, like in the Bremner’s case, journalists don’t use anonymising techniques.

Judgement of the European Tribunal for Human Rights of 13 October 2015, Bremner v. Turkey (complaint No 37428/06), press note: http://hudoc.echr.coe.int/eng#{%22itemid%22:[%22003-5197543-6435480%22]}

#dispute resolution #ethr #journalist #journalistic provocation #privacy #tv documentary

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