DISSENTING OPINION OF JUDGE LEMMENS

(Translation)

1. To my regret, I am unable to follow the majority in concluding that there has been a violation of Article 10 of the Convention in the present case.

2. This case concerns the criminal conviction of four journalists and editors for making a covert recording of a conversation between one of them and an insurance broker and broadcasting excerpts of the conversation on television, in an “anonymous” form. [1]

The convictions were based on two Articles of the Swiss Criminal Code. In the case of the first three applicants, who had not taken part themselves in the conversation with the broker, the offences in question were the recording of a private conversation between other persons without their consent (Article 179 bis § 1) and the disclosure to third parties of a fact obtained by means of such a recording (Article 179 bis § 2). In the case of the fourth applicant, who had posed as a customer and spoken with the broker, the offence consisted of the recording of a private conversation by one of the persons taking part, without the other’s consent (Article 179 ter § 1).

The offences in question are general in scope. In providing for them, the Criminal Code is not specifically targeting journalists. The recording and the broadcasting of a private conversation are prohibited irrespective of their purpose, whether journalistic or not.

3. It seems useful to me to note how the Federal Court approached the case.

At all levels of jurisdiction, the applicants’ main submission was that the above-mentioned provisions of the Criminal Code were not applicable to them, on the grounds that the conversation had not been “private”. The Federal Court dismissed that argument. It found that the acts of which the applicants were accused fell – objectively and subjectively – within the scope of the provisions cited. In doing so, it explicitly held that a conversation could be protected by Articles 179 bis and 179 ter of the Criminal Code, even if it did not concern the “intimate or private” sphere of those taking part. [2] In this connection, Articles 179 bis and 179 ter were, in the Federal Court’s view, analogous to Article 179, which protects the secrecy of correspondence, irrespective of the contents thereof. This implies, in my opinion, that the purpose of Articles 179 bis and 179 ter is to protect in general terms the confidentiality of any private conversation.

In the proceedings before the domestic courts, the applicants relied in the alternative on freedom of opinion and information and freedom of the media for the purposes of protecting legitimate interests: they submitted that the technique they had used had been necessary to preserve overriding legitimate interests. More specifically, they maintained that the recording and broadcasting of an actual conversation had been necessary to provide the public with proof of the existence of widespread abuses in the advice given by insurance brokers.

This argument was likewise rejected by the Federal Court, which pointed out, firstly, that in order for the protection of legitimate interests to apply, the criminal act had to be a necessary and appropriate means of achieving a legitimate aim – indeed, the only possible way of achieving that aim – and that the legal interest protected by the statutory prohibition had to carry less weight than the interest which the perpetrator of the act was seeking to preserve. The Federal Court then accepted the applicants’ argument that the aim of informing the public of the existence of abuses regarding insurance advice constituted a legitimate interest. It also acknowledged the specific situation of journalists, who were able to rely on freedom of the media. The reason it nevertheless considered the applicants’ line of defence unfounded was that, in the particular circumstances of the case, the technique of recording a specific conversation with a specific broker, without the latter’s knowledge, and then broadcasting it had not been a “necessary” means of achieving the aim pursued. In the Federal Court’s view, this aim could also have been achieved by other means, in conformity with the criminal law. [3]

Accordingly, the Federal Court’s conclusion that the applicants’ conviction had been justified on legal grounds was mainly based on an interpretation of the conditions laid down in domestic law for determining whether their plea of justification was valid, and on a factual assessment of their conduct.

4. The majority take the view that the legitimate aim pursued by the interference was that of “protecting the rights and reputation of others, specifically the broker’s right to respect for his own image, words and reputation” (see paragraph 43 of the present judgment).

This starting-point leads the majority to treat the case as one involving a conflict between two fundamental rights: the applicants’ freedom of expression and the broker’s right to respect for his private life. As a logical consequence, they proceed to apply the criteria which the Court established for examining such conflicts in Axel Springer AG v. Germany ([GC], no. 39954/08, §§ 89-95, 7 February 2012), listed in paragraph 50 of the present judgment. In the majority’s view, however, the two rights at stake do not carry comparable weight. Special importance is accorded to freedom of expression, bearing in mind the matter of public interest forming the subject of the report (see paragraphs 56-59 of the present judgment). The same cannot be said of the broker’s right to respect for his private life. In paragraph 64 the majority consider that the recording entailed only limited interference with the broker’s interests, given that only a restricted group of individuals had access to it. In paragraph 65 they add that, when the recording was broadcast, the applicants took steps to ensure that the broker would be less recognisable by viewers. They conclude in paragraph 66 that “the interference with the private life of the broker ... was not so serious ... as to override the public interest in receiving information about alleged malpractice in the field of insurance brokerage”.

To my regret, I cannot agree with this approach. As the Federal Court’s judgment indicates, Articles 179 bis and 179 ter do not seek to protect the private life of specific individuals, but the general confidentiality of private conversations (see paragraph 3 above). In my opinion, the case is much more concerned with the “prevention of [public] disorder” than with the “protection of the reputation or rights of others”. Therefore, I do not consider that there is any justification for applying the criteria set out in Axel Springer AG (see paragraphs 56-67 of the present judgment). In my view, the reasoning in the present case should have been closer to that adopted in Stoll v. Switzerland ([GC], no. 69698/01, ECHR 2007 ‑ V), cited in paragraph 47 of the present judgment. The Stoll case concerned a conflict between freedom of expression and preservation of the confidential nature of certain items of information. As in Stoll , the public-interest consideration advanced by the judicial authorities in the present case related to public order, as enshrined in criminal law, and not to merely private interests.

It is true that the Government referred solely to the legitimate aim of protecting the reputation or rights of others (see paragraph 41 of the present judgment). However, in the particular circumstances of the case, where the aim referred to by the Government is not entirely consistent with the reasoning of the Federal Court judgment, I do not consider the Court to be bound by the line of argument put forward by the Government. After inviting the parties, if need be, to submit comments on whether the aim of preventing disorder should also be taken into consideration, it should have been able to focus on the latter aim.

5. As to whether the interference was necessary, my views can be briefly stated.

As the majority acknowledge, “journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them protection” (see Stoll , cited above, § 102, cited in paragraph 47 of the present judgment). The question is whether the present case involved an exceptional situation. Such a situation can only result from according precedence to freedom of expression.

I accept that the report concerned a matter of public interest and that freedom of expression enjoys a high degree of protection. However, in my opinion the interest safeguarded by the statutory provisions in issue, namely protection of the confidentiality of private conversations, likewise carried considerable weight (see paragraph 4 above).

A difficult balancing exercise thus remains to be carried out. Here, the national authorities enjoy a certain margin of appreciation. In finding that the applicants’ conduct could not be excused on the ground of justification – that is, by a reason allowing them to disobey the criminal law – the Federal Court does not appear to have been arbitrary or manifestly unreasonable in its assessment. Having regard to the interests at stake, I likewise do not consider that the applicants’ conviction was disproportionate to the legitimate aim pursued by the law, and thus conclude that there has been no violation of Article 10 of the Convention.

1. I would observe that the applicants were not convicted for having made a recording with a hidden camera. The considerations set out in paragraph 61 of the present judgment as to the lack of an absolute prohibition on hidden cameras in Swiss law and the rules on professional ethics laid down by the Swiss Press Council are to my mind of little relevance. It may well be true that a hidden camera can lawfully be used in certain circumstances (for example, to film what is happening at a particular location), but once this technique is used to record a private conversation, it becomes prohibited by Articles 179 bis and 179 ter of the Criminal Code. The Federal Court’s judgment is clear on this point: the applicants used a technique that is prohibited and punishable by law. Rules on professional ethics cannot change that fact in any way.

2. In paragraph 60 of the present judgment, the majority consider that, while the broker could have “had a reasonable expectation of privacy” as regards his conversation with the fourth applicant, various circumstances indicated that the interference with the broker’s private life was relatively insignificant. In my opinion, the majority have overlooked the fact that Articles 179 bis and 179 ter of the Criminal Code guaranteed that the confidentiality of the broker’s conversation with the fourth applicant would be protected. This guarantee was firmly enshrined in law and in no way amounted to a mere “reasonable expectation” on the broker’s part. Furthermore, the existence of a legal guarantee could likewise not be affected by the circumstances in which the act breaching the guarantee was carried out.

3. The majority have not attached any importance to the fact that the reasoning pursued in the Federal Court’s decision related mainly to the applicants’ plea of justification. For example, in paragraph 57 of the present judgment they criticise the Federal Court’s finding that the report in issue had not added anything new to the debate on poor-quality advice. This criticism would be understandable if the Federal Court had made such an analysis in the context of assessing the “necessity” of the interference for Convention purposes, but is much less so in the context of its examination of whether the journalists’ actions were justified under domestic law. In paragraph 61 of the present judgment, the majority criticise the Federal Court’s finding that the use of a hidden camera “was permitted only where there was an overriding public interest in the dissemination of the relevant information, provided that such information could not be obtained by any other means”. Again, this assessment was made by the Federal Court in the context of its examination of the applicants’ plea of justification. The Federal Court did not seek to ascertain the extent to which the use of a hidden camera was acceptable, but simply determined the extent to which persons accused of recording and broadcasting a conversation protected by law could legitimately raise a plea of justification.