Information Note on the Court’s case-law 210

August-September 2017

Axel Springer SE and RTL Television GmbH v. Germany - 51405/12

Judgment 21.9.2017 [Section V]

Article 10

Article 10-1

Freedom of expression

Order banning publication of images from which accused in murder trial could be identified: no violation

Facts – Photographers working for the applicant media companies attended hearings during a murder trial to take still photographs and make video-recordings. During the trial, the presiding judge made an order banning the publication of images from which the accused could be identified. Before the European Court the applicants’ alleged that the order had give n rise to a violation of Article 10.

Law – The question before the Court was whether the judicial order was necessary in a democratic society. Where the right to freedom of expression was being balanced against the right to respect for private life, the cr iteria laid down in the Court’s case law had to be taken into account.* The criteria were not exhaustive and were to be transposed and adapted in the light of the particular circumstances of the case. That applied in particular to cases where the presumpti on of innocence under Article 6 § 2 of the Convention came into play. In the case at hand the criteria included: the contribution to a debate of public interest, the degree to which the person affected was known, the influence on the criminal proceedings, the circumstances in which the photographs were taken, the context, form and consequences of the publication, as well as the severity of the sanction imposed.

The crime at issue had been brutal but it had been committed within a family following a private dispute in a domestic setting. There were no indications that it had gained particular notoriety. The person affected was not a public figure, but an ordinary person who was the subject of criminal proceedings. While the accused had confessed to the crime, a confession in itself did not remove the protection of the presumption of innocence. A confession might, under certain circumstances, have an impact on the balancing of the competing rights. The presiding judge had taken into consideration that the confe ssions and their credibility had to be assessed at the end of the main hearing, according to the domestic law, and not before it had begun. That applied all the more as the accused suffered from a schizoid personality disorder. The accused had never sought to contact the media nor make any public comments but had expressly asked to be protected from reporting that identified him. The order banned merely the publication of images from which the accused could be identified. Any other reporting on the proceedi ngs was not restricted. As regards the consequences of a breach of the court order, the potential barring from further reporting on the case was equally limited to proceedings against the accused. The order did not have a chilling effect on the applicant m edia companies contrary to their rights under Article 10.

A careful balancing act had been carried out by the presiding judge. The judge had clearly addressed the conflict between opposing interests and had applied the domestic legal provisions by careful ly weighing the relevant aspects of the case. In view of the margin of appreciation available to national authorities in the context of restrictions on reporting on criminal proceedings, the presiding judge had chosen the least restrictive of several possi ble measures. Consequently, the interference with the applicant companies’ right to freedom of expression was necessary in a democratic society.

Conclusion : no violation (unanimously).

* See Axel Springer AG v. Germany [GC], 39954/08, Information Note 149 ; and Bédat v. Switzerland [GC], 56925/08, Information Note 194 .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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