CASE OF ALPHA DORYFORIKI TILEORASI ANONYMI ETAIRIA v. GREECE
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos
5. The applicant company is a limited liability company and is the owner of the Greek television channel ALPHA. 6. On 24 January 2002, ALPHA broadcast a television show named “Jungle” (Ζούγκλα) in which three videos that had been filmed with a hidden camera were broadcast. In the first video, A.C., then a member of the Hellenic Parliament and chairman of the inter-party committee on electronic gambling, was shown entering a gambling arcade and playing on two machines. The second video showed a meeting between A.C. and associates of the television host of “Jungle”, M.T., during which the first video was shown to A.C. The third video showed a meeting between A.C. and M.T. in the latter’s office. On 27 January 2002 the videos were shown again during a television show named “Yellow Press” (Κίτρινος Τύπος) presented by the same television host. 7. On 23 May 2002 the National Radio and Television Council (Εθνικό Συμβούλιο Ραδιοτηλεόρασης), following an invitation to the applicant company, held a hearing in which the applicant company was represented by its attorneys. As can be seen from the minutes of the meeting, the applicant company’s attorneys acknowledged the use of hidden camera in the above-mentioned incidents. They argued that such use had been justified owing to A.C. being a public figure and that it had served the public interest, as proven by the fact that the report had resulted in A.C.’s being dismissed from the parliamentary group of the political party for which he had been elected as parliamentary deputy. In their view, that had been the result not only of A.C.’s gambling activities, but also of the fact that he had tried to negotiate with the applicant company’s reporters to present the incident differently. The applicant company’s attorneys further argued that the use of a hidden camera had been exceptional and had been resorted to following the receipt of information that could not have been verified otherwise, as nobody would have believed the journalists’ allegations if they had reported on the issue without broadcasting the images. It can also be seen from the minutes that the members of the National Radio and Television Council expressed their disagreement regarding the use of a hidden camera, arguing that if anyone were able to use a hidden camera by claiming that there was an overriding public interest in doing so, then all citizens – especially if they were public figures – would be exposed to the possibility of being subject to pressure and extortion. They furthermore stressed that nobody would ever forbid journalists to report on a certain issue; however the means used raised an issue, as the use of hidden camera could be accepted only in respect of a national security issue or for the prevention of a serious crime or other similar situations. They also noted that there were two separate issues in the instant case; on the one hand the use of a hidden camera and on the other hand the entrapment of A.C. 8. By its decision 214/162/23.05.2002, the National Radio and Television Council ordered the applicant company to pay one hundred thousand (100,000) euros (EUR) for each of the two television shows during which the above-mentioned videos were shown, as well as to broadcast on three days in a row on its main news show the content of that decision. The decision included a short description of the three videos, a citation of the relevant legislation, and the conclusion that the use of hidden camera in that case had not been in accordance with the relevant law. It further stated that the sanctions had been imposed following an assessment of the gravity of the offence, of the number of viewers of the two television shows, of the size of the investment that had been made by the applicant company and the fact that the television channel had been repeatedly fined in the past for the same offence. 9. On 10 June 2002 the decision of the National Radio and Television Council was communicated to the Minister of Press and Media, who, after examining its legality, issued decision no 3156/E/11.02.2003 confirming its content. 10. On 4 April 2003 the applicant company lodged an application for annulment (αίτηση ακύρωσης) against the decisions of the National Radio and Television Council and the Minister of Press and Media with the Supreme Administrative Court (Συμβούλιο της Επικρατείας) on the grounds that the above-mentioned decision had violated Articles 9, 15 § 1 and 25 of the Greek Constitution, as well as Article 10 of the Convention. A.C. lodged a third-party intervention requesting from the Supreme Administrative Court to dismiss the application for annulment. On 23 January 2006 the President of the Supreme Administrative Court referred the case to the Plenary Supreme Administrative Court owing to its high importance. 11. The hearing before the Plenary Supreme Administrative Court took place on 2 June 2006. By its judgment no. 1213/2010, published on 16 April 2010 and finalised on 21 May 2010 (δημοσίευση και καθαρογραφή), the Supreme Administrative Court dismissed the application for annulment. 12. In its legal assessment, the majority of the Supreme Administrative Court firstly referred to the constitutional provisions providing the right to impart and receive information, and then emphasised that this right is subject to limitations whose legitimate aim is the protection of the rights of others and the observance of the rule of law on condition that those limitations are proportionate. It additionally referred to the Court’s case-law in respect of Article 10 and on Article 8, with specific reference to case-law concerning the protection of a person’s image (see Von Hannover v. Germany, no. 59320/00, ECHR 2004VI; Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; and Sciacca v. Italy, no. 50774/99, ECHR 2005I). It continued by noting that under Article 15 of the Constitution the State has the legal duty to exercise control over the radio and television in order to ensure respect for human values and that sanctions imposed by the National Radio and Television Council served that purpose. 13. The Supreme Administrative Court laid down the conditions under which it is legitimate to broadcast an image that has been filmed with the method of hidden camera, by making a distinction between reporting on specific news, whose exclusive or main source is an image of a specific person recorded by secret means, and the broadcasting of the relevant, secretly recorded image. According to that reasoning, recording by secret means an image which has as its main or only subject a specific person constitutes in principle a violation of that person’s right to his own image, which is protected by Articles 9 § 1 of the Constitution and 8 § 1 of the Convention, as a specific aspect of the right to respect for one’s private life. Consequently, the broadcasting on television of news whose exclusive or main source is an image of a specific person recorded by secret means cannot, in principle, be considered as constituting the legitimate exercise of the right to impart information, given that the disseminated news has been received under circumstances which constitute a violation of an individual’s right to his own image. Nevertheless, in certain cases it may be considered justified to broadcast such news, on account of its contribution to a debate of general interest and taking into account the secretly recorded person’s position or standing. However, even when broadcasting of the news is considered a legitimate exercise of the right to impart information, this does not automatically render legitimate the broadcasting of the relevant, secretly recorded images, as that constitutes a much more intense [έντονος] limitation of the constitutionally protected right of that person to his own image than the simple transmission of news. In the domestic court’s view, broadcasting of a secretly recorded image can only be justified if the legitimate (for the reasons mentioned above) broadcasting of such news is completely impossible or particularly difficult without broadcasting the image that was recorded by hidden means and which constitutes the source of the news. 14. Supreme Administrative Court dismissed the applicant company’s argument that it had legitimately transmitted the news concerning A.C. in view of A.C.’s capacity as a public figure. The domestic court stressed that from the text of the decision and from the minutes of the meeting of the National Radio and Television Council it derived that the sanction was imposed to the applicant company solely and exclusively on account of the broadcast of the images that had been recorded by hidden means and not on account of the transmission of the news, whose source had been the secretly recorded images. As far as the broadcasting of the images was concerned, the applicant company had not disputed that the images had been recorded by secret means and had not claimed that broadcasting of the news was absolutely impossible or extremely difficult without broadcasting the relevant images. Therefore, the applicant company’s allegation that it had broadcast the impugned images for reasons of journalistic interest and of public interest was dismissed. 15. On the basis of the above-mentioned reasoning, the Supreme Administrative Court ruled that the decision of the National Radio and Television Council had been fully reasoned and dismissed the applicant company’s application for annulment. 16. A concurring, more specific (ειδικότερη) opinion was joined to the majority opinion; the seven judges considered that the recording of a person without his knowledge and the use of it for the broadcasting of news constituted a direct violation of that person’s right to dignity as it reduces him to an instrument for others to achieving goals that are irrelevant to him. Given that, pursuant to Articles 2 § 1, 15 § 2 and 25 § 1 of the Constitution, the protection of human dignity is absolute, the broadcasting of such news is always forbidden, irrespective of whether such a broadcast includes the image in question. For those reasons, the judges who supported this opinion considered that the application for annulment should be dismissed. 17. In addition, there were two dissenting opinions. According to the first one, in view of the fact that the National Radio and Television Council had considered that the broadcasting of news that had been recorded by secret means had constituted a legitimate exercise of the right to impart information, the same considerations should be extended to the broadcasting of the relevant image. The reason for this was the special nature of television, in comparison with the other media, owing to which the broadcasting of the image went hand-in-hand with broadcasting the news itself. Therefore, the application for annulment should have been allowed, given that the National Radio and Television Council’s decision had been based solely on the fact that the image of A.C. had been recorded by hidden means, without considering whether broadcasting news whose source was the above images constituted a legitimate exercise of the right to impart information. 18. Lastly, according to the other dissenting opinion, no constitutional provision justified the absolute protection of an image (as was held by the majority). A person’s right to his own image was susceptible to limitations that varied according to that person’s position and the space in which the recording in question had taken place. For individuals, protection against the recording of their image without their consent was absolute, irrespective of whether it took place in a public or private space, unless the recording was not directed to them or the recording of the image took place with a view to the prevention of crimes in public space. For public figures, however, protection was less absolute. In particular, public figures, such as politicians, were exposed to publicity and sometimes they even pursued it. As a result, there was a legitimate expectation on the part of the media and of the public to impart and receive information regarding their public activities. For these persons, there was an absolute protection of their image in their private space and in public spaces in which they shared private or family moments. When, however, public figures were in public spaces but not under the conditions described above, or acted in a way that was of interest to the public (such as in cases in which they engaged in behaviour contrary to what their public role entailed or contrary to the image they projected towards the public), then the right to receive and impart information could justify the recording of that person without his consent and the broadcasting of the relevant images by the media. In this regard, the dissenting judges argued that it would be inconceivable to equate radio with television, as they did not operate on the same way; therefore, it would not be possible for a television show to simply announce the news without broadcasting the relevant images, as would be the case on the radio. In respect of legitimately recorded images, when there is a balance between transparency and the right to receive information on the one hand and the protection of a person’s image on the other hand, the presumption should be that the recorded image could be broadcast without consent. In view of the above, the four judges considered that the application for annulment should be allowed, taking into account especially the fact that A.C. was a public figure, that the recording of his image had taken place in a public space (that is to say in a gambling arcade), and that the broadcasting of the relevant images had served the purpose of informing the public of behaviour on the part of a member of Parliament that did not meet the requirements of his position. Therefore, the television channel’s decision to broadcast the image as a part of the television shows, which otherwise could be considered unfounded or even defamatory, had not breached the proportionality principle.