CASE OF HALDIMANN AND OTHERS v. SWITZERLAND
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
András Sajó;Egidijus Kūris;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
6. The applicants were born in 1953, 1950, 1969 and 1969 and live in Uster, Zürich, Bäretswil and Nussbaumen respectively. 7 8. In 2003 the third applicant, an editor on the Kassensturz television programme, prepared a report on practices employed in selling life-insurance products. The report was prompted by the annual reports of the Private Insurance Ombudsman for the Canton of Zürich and by letters which the programme’s editors had received from viewers expressing their dissatisfaction with insurance brokers. Kassensturz was a long-running weekly consumer-protection programme on Swiss German television (SF DRS). 9. The third applicant agreed with the first applicant (the editor-in-chief of SF DRS) and the second applicant (the editor in charge of the programme) that she would record meetings between customers and brokers, using a hidden camera, to provide evidence of the brokers’ inadequate advice. It was decided that the meetings would be recorded in a private flat and that an insurance expert would then be asked to comment on them. 10. The fourth applicant, a journalist working for SF DRS, arranged a meeting with an insurance broker from the X company, which took place on 26 February 2003. She pretended to be a customer interested in taking out life insurance. The SF DRS crew installed two hidden cameras (Lipstickkameras) in the room in which the meeting was to take place, transmitting the recording of the conversation to a neighbouring room where the third applicant and the insurance expert had taken up position, together with a camera operator and a technician who had been assigned to film the expert’s views on the meeting. 11. Once the meeting had finished, the third applicant joined the broker and the fourth applicant in the room, introduced herself as an editor of Kassensturz and explained to the broker that the conversation had been filmed. The broker replied that he had suspected as much (“Das habe ich gedacht”). The third applicant told him that he had made some crucial errors during the meeting and asked him for his views, but he refused to comment. 12. The first and second applicants subsequently decided to broadcast part of the filmed meeting during a forthcoming edition of Kassensturz. They suggested that the X company be invited to comment on the conversation and the criticism of the broker’s methods, and assured the company that his face and voice would be disguised and would therefore not be recognisable. Before the programme was broadcast, the applicants proceeded to pixelate the broker’s face so that only his hair and skin colour and his clothes could still be made out. His voice was also distorted. 13. On 3 March 2003 the broker brought a civil action in the Zürich District Court, seeking an injunction preventing the programme from being broadcast. The action was dismissed in a decision of 24 March 2003. 14. On 25 March 2003, the day after the application for an injunction to protect the broker’s interests had been rejected, excerpts from the meeting of 26 February were broadcast, with the broker’s face and voice disguised as planned. 15. On 29 August 2006 the single judge for criminal cases at the Dielsdorf District Court (Canton of Zürich) found the first three applicants not guilty of intercepting and recording conversations of others (offences under Article 179 bis §§ 1 and 2 of the Criminal Code), and the fourth applicant not guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code). 16. Both the Principal Public Prosecutor (Oberstaatsanwalt) of the Canton of Zürich and the broker, as an injured party, appealed against the judgment of 29 August 2006. 17. In a judgment of 5 November 2007 the Court of Appeal (Obergericht) of the Canton of Zürich found the first three applicants guilty of recording conversations of others (Article 179 bis §§ 1 and 2 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). It also found the fourth applicant guilty of unauthorised recording of conversations (Article 179 ter § 1 of the Criminal Code) and breaching confidentiality or privacy by means of a camera (Article 179 quater §§ 1 and 2 of the Criminal Code). The first three applicants were given suspended penalties of fifteen day-fines of 350 Swiss francs (CHF), CHF 200 and CHF 100 respectively, while the fourth applicant received a penalty of five day-fines of CHF 30. 18. The applicants appealed jointly to the Federal Court against their convictions, relying in particular on the right to freedom of expression under Article 10 of the Convention. They argued that their recourse to the impugned technique had been necessary to achieve the aim pursued. 19. In a judgment of 7 October 2008, which was served on the applicants’ representative on 15 October 2008, the Federal Court allowed the appeal in so far as it concerned the charge of breaching confidentiality or privacy by means of a camera within the meaning of Article 179 quater of the Criminal Code. It held that there had been a violation of the principle that the trial must relate to the charges brought and a violation of the rights of the defence, and remitted the case to the lower court. 20. The Federal Court dismissed the remainder of the appeal. It held that the applicants had committed acts falling under Article 179 bis §§ 1 and 2 and Article 179 ter § 1 of the Criminal Code and dismissed their defence of justification. It acknowledged that there was a significant public interest in being informed about practices employed in the insurance field, and that this interest was liable to be weightier than the individual interests at stake. However, it considered that the applicants could have achieved their aims by other means entailing less interference with the broker’s private interests, for example commenting on the Ombudsman’s annual reports or interviewing the Ombudsman’s staff or customers dissatisfied with their broker’s services. It also found that instead of filming the meeting with a hidden camera, the journalist could have drawn up a record of the conversation, although it acknowledged that the probative value of that method would obviously have been less striking. Lastly, it held that the filming of a single case was insufficient to provide reliable evidence of the scale of the alleged problems, since examples of malpractice in this field were widespread and common knowledge. The broadcasting of an isolated example would therefore not enable the public to draw general conclusions about the quality of advice given by insurance companies. 21. On 24 February 2009 the Court of Appeal of the Canton of Zürich found the applicants guilty of breaching confidentiality or privacy by means of a camera, an offence under Article 179 quater of the Criminal Code. It therefore slightly reduced the penalties previously imposed on them: the first three applicants were given twelve day-fines of CHF 350 (approximately 290 euros (EUR)), CHF 200 (approximately EUR 160) and CHF 100 (approximately EUR 80) respectively, instead of fifteen day-fines, and the fourth applicant was given four day-fines of CHF 30 instead of five day-fines. The penalties were all suspended for a probationary period of two years. The applicants did not appeal against that judgment.