Thursday 15 October 2015

Hidden cameras and human rights: the ECHR clarifies the position

Lorna Woods, Professor of Internet Law, University of Essex 

When does the use of hidden cameras by journalists breach human rights? This issue was clarified by recent judgment of the European Court of Human Rights in Bremner v Turkey. The case was brought by an Australian national about the use of surreptitious filming of him in his flat talking about Christianity.  The filming took place as part of the making of a documentary about “foreign pedlars of religion” in Turkey.  The programme broadcast revealed Bremner and in particular did not blur his face.  Bremner then sued the programme makers, but was unsuccessful given the public interest in the topic, and the matter came before the ECHR.  Bremner argued that there had been a violation of Article 8 ECHR (right to private life) as regards the content of the programme and the failure of the Turkish courts to indemnify him. In Bremner’s view the programme exposed him to threats of aggression.  He also referred to Articles 6 (right to a fair trial), 9 (right to religion) and 10 (freedom of expression).

The Court confirmed that the obligation under Article 8 was engaged via the taking of unwanted photos or video, and that Art 8 included positive obligations on the state to protect the right to private life, even as far as between individuals (citing the Grand Chamber decision in Fernandez Martinez v. Spain).  Although the boundary between the positive and negative aspects of the right is sometimes a little fuzzy, as the Court recognised, in this context the court emphasised the central point was the need to identify the appropriate balance between the individual and the public interest.   The Court also re-iterated that in cases involving the media and the balance between Articles 8 and 10, the outcome should not differ on whether the case was brought by the subject of the story under Article 8 or by the media under Article 10, and the margin of appreciation should be the same.  It reiterated its principles about the importance of the press (reflecting the Turkish government’s arguments on this point) but also the factors in Axel Springer and Von Hannover about the scope of the public interest when balanced against the right to private life.  Although the subject matter of the documentary was in the public interest (and moreover did not amount to hate speech), techniques such as the surreptitious use of cameras were damaging to private life and must be used with restraint and in accordance with ethical principles.  While the Court did not rule out the use of such techniques altogether (referring to De La Flor Cabrera in which video surveillance in a public place which was used for evidence in court did not constitute a violation), it suggested that they would be used as a mechanism of last resort where the information would be otherwise unobtainable.

In terms of balancing freedom of expression with the right to private life, the court noted that Bremner was – contrary to the assertions of the Turkish Government- not a public figure and was not in the public arena.  Specifically, the Court rejected the argument that because Bremner was a journalist he would be a public figure.  Bremner was not acting in that capacity and he was unknown to the general Turkish public.  There was nothing to suggest to him that he might be the subject of public criticism; rather he thought he would be discussing Christianity with some people who had expressed an interest in the subject.

Looking at the failure to blur Bremner’s face, the Court noted that the domestic courts had not considered what Bremner’s identification added to the public interest bearing in mind that he was not famous.  The Court distinguished this case from Haldimann, in which a violation of the Article 10 rights of journalists had been found.  In that case, and what was crucial to the determination, was that the journalists had pixelated the face and altered the voice of the person in issue. Thus, despite the margin of appreciation, the national courts had not struck an appropriate balance between freedom of expression, nor afforded adequate protection to Bremner’s Article 8 rights.  Consequently there had been a violation of this right.

As regards the right to religion, Bremner had not exhausted national remedies and the claim was therefore inadmissible.  The other two claims were also found to be inadmissible.


This case follows reasonably swiftly on from the case of Haldimann earlier this year, which also concerned surreptitious journalistic techniques.  It may also be seen to be a contrast to Haldimann.  There journalists had been subject to some low level fines for surreptitious filming and the Court found a violation of Article 10.  Here, a case brought under Article 8, the State was found not to have done enough to protect privacy rights.  Both cases relied on the principles laid down  in Axel Springer: the contribution to a debate of general interest, how well-known the person being reported on is and the subject of the report, the person’s prior conduct, the method of obtaining the information, the veracity, content, form and repercussions of the report, and the penalty imposed.  In Haldimann, the Court noted that although the subject of the report was a private individual, the report criticised certain commercial practices rather than focussing on the individual, the business practices were a matter of public interest, and – crucially – his face was obscured through pixellation and his voice altered.  The court has repeatedly held that safeguards afforded to journalists reporting on matters of public interest apply subject to the condition that they are acting in good faith, in accordance with the ethics of journalism and have a sufficient factual basis for their reporting. In Haldimann, the subject did not even challenge the journalists’ account of events.  Haldimann was seen as important because of the acceptance of the infringement of the Article 8 rights of a private individual as opposed to a public person. 

Bremner shows that there are limits to this possibility. A crucial distinction between the cases was the fact that Bremner was not disguised – his face was broadcast without pixellation.  Indeed, the Court in Bremner suggested that irrespective of the significance of the story in general, a failure to blur an individual’s face would be problematic [para 81].  Another difference – though the Court did not emphasise this element - was the invasion took place in his flat; even though Article 8 applies to business premises, presumably an invasion into the home carries more weight than intrusion as a business.  Even in Haldimann it was unclear whether the Court would support an intrusion where there to be other options for acquiring the evidence to support a story; Bremner re-iterated the principle that such techniques should be used only as a matter of last resort.  While this arguably reintroduces some doubt in the assessment, it certainly matches the approach taken by broadcasters in this country, and even the terms of the Editors’ Code in respect of the press.  What does seem clear (and lines up with the much older case of Peck) is that when footage or photographs of private individuals are broadcast, pixellation and other methods of disguising the subject are important and indeed may be a boundary line factor between acceptable and unacceptable.  What is less clear from this is whether the filming of subjects in their homes is a separate infringement against which the state must protect.

Barnard & Peers: chapter 9
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