CONCURRING OPINION OF JUDGE SPANO

I

1. T he applicants, the director of a local news portal and two of its journalists, were convicted of illegally accessing radio channels used by the police during the latter ’ s activities, as the information so obtained by the journalists was considered confidential under the Italian Criminal Code. The Court finds no violation of Article 10 of the Convention. I concur in the judgment. However, I am writing separately as I consider the reasoning adopted by the Court to be somewhat too broad in substance.

2. Investigative journalism is an important feature of democratic societies. As history has demonstrated, responsible journalism can, if pursued effectively, uncover information of great value for the public interest and thus promote and strengthen the fundamental democratic values of accountability and transparency. As the Court has previously held, the concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the content of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia , the lawfulness of the conduct of a journalist, including his or her public interaction with the authorities when exercising journalistic functions. Importantly, the mere fact that a journalist has breached the law in his or her journalistic activity is a highly relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly.

3. As the Court held in its Grand Chamber judgment in Stoll v. Switzerland ([GC], no. 69698/01, § 102, ECHR 2007 ‑ V) , although it may be undisputed that a journalist has violated the criminal law – for example, as in Stoll , by publishing information that was confidential – the mere fact that a journalist has acted in breach of a criminal-law provision is not the end of the matter for the purposes of the necessity and proportionality assessment which must be carried out under Article 10 § 2 of the Convention. Otherwise, Contracting States would be free to subject journalists to criminal sanctions whenever they came close to uncovering activities that cast those in power in an unfavourable light, and would thereby subvert the vital role of the press in the functioning of a democratic society.

4. But it is clear that journalists cannot claim exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, they committed the offence in question during the performance of their journalistic functions. All persons, including journalists, who exercise their freedom of expression undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see Pentikäinen v. Finland [GC], no. 11882/10, §§ 90-91, ECHR 2015, and Stoll , cited above, § 102).

II

5. The applicants complain that the seizure of their vehicle and radio equipment, and their subsequent conviction, constituted a disproportionate interference with their freedom of expression within the context of their attempts to access information as journalists.

6. The Court begins its inquiry by leaving open the question whether the applicants suffered an interference within the meaning of Article 10 § 1 of the Convention, as the Court finds, in any event, that even assuming that such an interference occurred, it was justified on the facts (see paragraph 45 of the [French version of the] judgment). This may be a prudent course of action as it can be difficult to determine whether pre-publication activity, as part of investigative journalism, is conduct which in itself triggers the protections of Article 10 of the Convention. However, on the particular facts of this case, I would have been comfortable in finding that Article 10 was indeed applicable and that an interference occurred. Here, I consider, differently from my colleagues (see paragraph 43 of the [French version of the] judgment), that such a finding would have been logically consistent with the recent findings of the Grand Chamber in Pentikäinen , cited above, § 83, where the Court considered that the applicant, in the “ exercise of his journalistic functions had been adversely affected as he was present at the scene as a newspaper photographer in order to report on the events” when he was apprehended by the police, detained for 18 hours and later charged and found guilty by the domestic courts of the crime of disobeying the police.

7. I agree with the findings of the Court on the issues of lawfulness and whether the interference pursued a legitimate aim (see paragraphs 49-50 of the judgment). At paragraph 56 the Court then correctly refers to the following Stoll criteria as the framework for the analysis of the facts (see my dissenting opinion in Pentikäinen , cited above, § 6): the interests at stake, the review of the measure by the domestic courts, the conduct of the applicant and whether the penalty imposed was proportionate (see Stoll , cited above, § 112). However, it is in the application of these criteria to the facts of the case that I find the reasoning problematic and overly broad in scope. I would have applied a narrower, more fact-sensitive analysis in the following manner.

8. Firstly, although I agree that the facts do not disclose the same kind of public interests as those at stake in Stoll or Pentik ä inen , the assessment should not have been limited to stating in abstract terms that the interest in the present case was limited to the public ’ s right to be informed of trivial items of a general nature on a local news portal (see paragraph 59 of the judgment). The public-interest inquiry should rather have been directed more intensely at the nature of the confidential information that the journalists were actually seeking to obtain so as to be able to inform the public. Indeed, and very importantly, there are situations where journalists may be justified under Article 10 of the Convention in deciding to pursue aggressive investigatory strategies in their work, even accessing confidential information, if the public interest in disseminating the information in question is strong, for example in the case of efforts to uncover corruption or illegal activities by government officials or elected representatives. Also, the fact that the newspaper is published for the benefit of a local community is irrelevant in my view, also considering that the content of the news portal in question was published online.

9. Having said that, even analysing the case through this narrower, more fact-sensitive prism, it nonetheless transpires that the nature of the information obtained by the applicants was not paramount from the perspective of the public interest. The applicants accessed the police radio channel and used the information so obtained in order to be present at the scene of an everyday law-enforcement operation. The applicants have to bear the burden under Article 10 § 2 of the Convention for having resorted to illegal means in obtaining confidential information without their actions being justified by the existence of a strong public interest.

10. The second issue I find problematic relates to the fact that the Court considers correctly that the Italian courts applied a rule of domestic criminal law which proscribes in a general manner the interception of confidential conversations, including police communications (see paragraph 65 of the judgment). In other words, the domestic courts did not engage in a balancing of the conflicting interests at stake as is normally required in Article 10 cases of this nature under the second of the Stoll criteria, which concerns the review of the measure by the domestic courts. In my view, the Court should have recognised this problematic nature of the domestic courts ’ review, having already rejected the Government ’ s non-exhaustion of domestic remedies argument that the applicants had not invoked their right to freedom of expression at domestic level (see paragraph 40 of the [French version of the] judgment).

11. However, taking account of the applicants ’ complaint viewed as a whole on the basis of the Stoll criteria, and in particular the relatively little weight that can be attached to the public interest at stake when balanced against the applicants ’ criminal behaviour in obtaining the information in question, I concur in the judgment.