Journalists and publishing companies
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code of 21 December 1937 (version in force until 31 December 2006) 17. The relevant provisions of the Criminal Code read as follows. Article 39 – Short periods of imprisonment [ arrêts ] “1. Short periods of imprisonment [ arrêts ] correspond to the least severe custodial sentence available. Their duration is one day minimum and three months maximum ...” Article 293 – Publication of secret official deliberations “1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with imprisonment [ arrêts ] or a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.” B. Criminal Code of 21 December 1937 (version in force since 1 January 2007) 18. The provisions of the Criminal Code read as follows. Article 293 – Publication of secret official deliberations “1. Anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of any authority which are secret by law or by virtue of a decision taken by such an authority acting within its powers shall be punished with a fine. 2. Complicity in such acts shall be punishable. 3. The court may decide not to impose any penalty if the secret concerned is of minor importance.” C. Code of Criminal Procedure of the Canton of Vaud of 12 September 1967 19. The relevant provisions of the Code of Criminal Procedure of the Canton of Vaud of 12 September 1967 read as follows. Article 166 – Secrecy “Preliminary police inquiries shall be secret. Articles 184 to 186 are applicable by analogy.” Article 184 – Secrecy of investigations “1. All investigations must remain secret until their final conclusion. 2. Secrecy shall concern all evidence uncovered by the investigation itself and all non-public investigative decisions and measures.” Article 185 – Persons bound to secrecy “Judges, prosecutors and judicial staff may not disclose items of evidence or information on the investigation to anyone who does not have access to the files, except to the extent that such disclosure would be useful to the investigation or is justified on public-order, administrative or judicial grounds.” Article 185a “1. The parties, their friends and relatives, their lawyers, the latter ’ s associates, consultants and staff, and any experts and witnesses are required to observe the secrecy of the investigation vis-à-vis anyone who does not have access to the files. 2. Disclosure of such information to friends or relatives by the parties or their lawyers shall not be punishable.” Article 185b “1. As an exception to Article 185, the cantonal investigating judge and, with the latter ’ s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ Conseil d ’ État ] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly in the following cases: (a) where public cooperation is required to shed light on an offence; (b) in cases which are particularly serious or are already known to the general public; (c) where erroneous information must be corrected or the general public reassured. 2. If a press conference is organised, counsel for the parties and the public prosecutor shall be invited to attend. 3. If incorrect information has been disclosed to the press, radio or television, the parties may apply to the cantonal investigating judge to order rectification of such information, via the same media.” Article 186 – Sanctions “1. Anyone who breaches the secrecy of investigations shall be punished with a fine of up to five thousand Swiss francs, unless this act is punishable under other provisions protecting secrecy. 2. In very minor cases the person in question may be exempted from any penalty. ...” D. Directives of the Swiss Press Council 20. The Directives relating to the Declaration of the Duties and Rights of the Journalist issued by the Swiss Press Council which are relevant to the instant case read as follows. Directive 3.8 – Right to be heard against grave accusations “According to the principle of fairness and the general ethical requirement that both parties to a dispute must be heard ( audiatur et altera pars ), journalists are obliged to contact and hear, prior to publication, the views of those accused of serious offences. In so doing they must describe in detail the serious accusations which they are intending to publish. There is no obligation for the statements of the person accused of serious offences to be given the same weight in a report as the criticism of his or her actions. These statements must, however, be presented fairly when published in the same media report.” Directive 7.2 – Identification “Journalists must weigh carefully the various interests involved (the general public ’ s right to information, protection of the private sphere). Names or personally identifiable information is allowed: – when the person involved appears publicly in relation to the issue or consents to publication in other ways; – when the person is famous and the media report concerns the reason for his or her celebrity; – when the person involved holds political office or a leading government or social position which is linked to the media report; – when naming the person is necessary to avoid confusion that would be deleterious to other persons; – when naming or identifying the person is also justified by an overriding public interest. Where the interest in protecting private life outweighs the public interest in identification, journalists shall publish neither names nor any other information that would identify the person to third parties who do not belong to his or her family, social or professional sphere, and who are therefore informed solely through the media.” III. RELEVANT EUROPEAN INSTRUMENTS AND COMPARATIVE LAW MATERIAL A. Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003) 21. The relevant passages of Recommendation Rec(2003)13 read as follows. “... Recalling that the media have the right to inform the public due to the right of the public to receive information, including information on matters of public concern, under Article 10 of the Convention, and that they have a professional duty to do so; Recalling that the rights to presumption of innocence, to a fair trial and to respect for private and family life under Articles 6 and 8 of the Convention constitute fundamental requirements which must be respected in any democratic society; Stressing the importance of media reporting in informing the public on criminal proceedings, making the deterrent function of criminal law visible as well as in ensuring public scrutiny of the functioning of the criminal justice system; Considering the possibly conflicting interests protected by Articles 6, 8 and 10 of the Convention and the necessity to balance these rights in view of the facts of every individual case, with due regard to the supervisory role of the European Court of Human Rights in ensuring the observance of the commitments under the Convention; ... Desirous to enhance an informed debate on the protection of the rights and interests at stake in the context of media reporting relating to criminal proceedings, and to foster good practice throughout Europe while ensuring access of the media to criminal proceedings; ... Recommends, while acknowledging the diversity of national legal systems concerning criminal procedure, that the governments of member states: 1. take or reinforce, as the case may be, all measures which they consider necessary with a view to the implementation of the principles appended to this recommendation, within the limits of their respective constitutional provisions, 2. disseminate widely this recommendation and its appended principles, where appropriate accompanied by a translation, and 3. bring them in particular to the attention of judicial authorities and police services as well as to make them available to representative organisations of lawyers and media professionals. Appendix to Recommendation Rec(2003)13 – Principles concerning the provision of information through the media in relation to criminal proceedings Principle 1 – Information of the public via the media The public must be able to receive information about the activities of judicial authorities and police services through the media. Therefore, journalists must be able to freely report and comment on the functioning of the criminal justice system, subject only to the limitations provided for under the following principles. Principle 2 – Presumption of innocence Respect for the principle of the presumption of innocence is an integral part of the right to a fair trial. Accordingly, opinions and information relating to on-going criminal proceedings should only be communicated or disseminated through the media where this does not prejudice the presumption of innocence of the suspect or accused. ... Principle 6 – Regular information during criminal proceedings In the context of criminal proceedings of public interest or other criminal proceedings which have gained the particular attention of the public, judicial authorities and police services should inform the media about their essential acts, so long as this does not prejudice the secrecy of investigations and police inquiries or delay or impede the outcome of the proceedings. In cases of criminal proceedings which continue for a long period, this information should be provided regularly. ... Principle 8 – Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle.” B. Comparative law 22. As regards the issue of penalties provided for in cases of breaches of the secrecy of criminal investigations, the Court has comparative law material at its disposal relating to thirty member States of the Council of Europe (Austria, Azerbaijan, Belgium, Bulgaria, the Czech Republic, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Monaco, Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom). The disclosure of information covered by the secrecy of criminal investigations is penalised as such in all those States. 23. In twenty-three of the thirty member States concerned, the penalties are general in scope, that is to say that they may be imposed on anyone who has disclosed information covered by the secrecy of criminal investigations. In the seven remaining States (Austria, Lithuania, Luxembourg, Moldova, Romania, Spain and Ukraine), the penalties only target persons involved in the criminal investigation. Most of those twenty-three States have opted for criminal penalties, while in Estonia, the Russian Federation and the Czech Republic a breach of the secrecy of criminal investigations is only liable to administrative sanctions. THE LAW 24. The applicant complained that his criminal conviction had resulted in a violation of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 25. In its judgment of 1 July 2014, the Chamber concluded that there had been a violation of Article 10. It first of all considered that the applicant ’ s conviction and the fine imposed on him for using and reproducing extracts from the investigation file in his article had amounted to interference with his right to freedom of expression and that such interference had been prescribed by law and had pursued the following legitimate aims: preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”. 26. The Chamber then stated that the impugned article originated from a set of judicial proceedings initiated following an incident which had occurred under exceptional circumstances, which had immediately aroused interest among the public and which had prompted many media outlets to cover the case and its handling by the criminal justice system. In the impugned article the applicant looked at the character of the accused and attempted to understand his motives, while highlighting the manner in which the police and judicial authorities were dealing with him, a man who seemed to be suffering from psychiatric disorders. The Chamber therefore concluded that the article had addressed a matter of public interest. 27. However, the Chamber noted that the applicant, an experienced journalist, must have known that the documents that had come into his possession were covered by the secrecy of judicial investigations. That being the case, he ought to have complied with the relevant legal provisions. 28. In weighing up the competing interests at stake, the Chamber found that the Federal Court had merely noted that the premature disclosure both of the records of interviews and of the letters sent by the accused to the judge had necessarily infringed both the presumption of innocence and, more broadly, the accused ’ s right to a fair trial. However, the article in issue had not addressed the matter of the accused ’ s guilt and had been published more than two years before the first hearing at his trial for the alleged offences. Furthermore, the accused had been tried by courts made up exclusively of professional judges, with no lay jury participating, which also reduced the risks of articles such as the present one affecting the outcome of the judicial proceedings. 29. Inasmuch as the Government had alleged that the disclosure of the documents covered by the secrecy of judicial investigations had constituted interference with the accused ’ s right to respect for his private life, the Chamber noted that, although remedies had been available to the accused under Swiss law for claiming compensation for the damage to his reputation, he had failed to use them. Accordingly, the second legitimate aim relied upon by the Government was necessarily less important in the circumstances of the case. 30. As regards the Government ’ s criticism of the form of the impugned article, the Chamber reiterated that in addition to the substance of the ideas and information expressed, Article 10 also protected the manner in which the latter were conveyed. 31. Finally, although the fine had been imposed for a “minor offence” and heavier penalties, including prison sentences, could be imposed for the same offence, the Chamber considered that because of its significant deterrent effect, the fine imposed in the instant case had been disproportionate to the aim pursued. 32. The Chamber concluded that the reasons put forward by the national authorities were relevant but not sufficient to justify such an interference with the applicant ’ s right to freedom of expression. B. The parties ’ submissions to the Grand Chamber 1. The applicant 33. The applicant accepted that his conviction had had a legal basis, but submitted that it had not been necessary in a democratic society. 34. He submitted first of all that the publication had not been intended to disclose confidential information but rather had satisfied a public interest, namely the obligation to inform the population of facts relating to a major event which had shocked the inhabitants of Lausanne and French-speaking Switzerland. He contended that, although that information had indeed been formally confidential, its nature had not been such as to justify keeping it secret. 35. The applicant also pointed out that the impugned publication had not influenced the ongoing investigations or infringed the presumption of innocence in respect of the accused. As regards this latter principle, the applicant emphasised that while it was binding on State authorities, it could not prevent private individuals from forming an opinion before the end of a criminal trial. As in Campos Dâmaso v. Portugal (no. 17107/05, § 35, 24 April 2008), no non-professional judge could have been called on to determine the case, which had in fact been tried by a court made up exclusively of professional judges. The applicant submitted that it transpired from the Criminal Court judgment of 23 November 2005 and the Criminal Court of Cassation judgment of 26 June 2006 that the impugned article had had no impact on M.B. ’ s trial. Moreover, the Federal Court judgment had not established any such impact, confining itself to general considerations on the risks of collusion and the danger of evidence being tampered with or destroyed. Moreover, the applicant submitted that, even though at the time of publication of the impugned article no one could have known that the accused ’ s trial would take place two years later, which would have decreased even further the potential impact of the article on the ongoing proceedings, it had been certain that the investigation leading up to the trial would continue for many more months. 36. As regards the protection of M.B. ’ s right to respect for his private life, the applicant reiterated that M.B. had neither applied to the courts nor had recourse to the legal remedies available to him. That being the case, the State ’ s positive obligation to protect the accused ’ s private life was merely a theoretical question, whereas the Court ’ s assessment should be carried out in concreto. The present case involved a “virtual” balancing act between the rights of a journalist who had actually been convicted in criminal proceedings and those of an accused person who had never even intended to rely on his right to protection of his private life, despite having had the opportunity to do so. 2. The Government 37. The Government did not contest the fact that there had been an interference in the applicant ’ s exercise of his right to freedom of expression, referring to the Chamber finding that such interference had been “prescribed by law” and had pursued a “legitimate aim”. 38. The Government ’ s arguments centred mainly on the necessity of the interference in a democratic society. 39. First of all the Government observed that in the instant case there had been no compelling reasons to inform the public that might have enabled the applicant to disregard the secrecy of the investigation. They referred to a number of cases adjudicated by the Court inferring the existence of a public interest from the high profile of the individuals involved in the criminal proceedings in question. With reference to Leempoel & S.A. ED. Ciné Revue v. Belgium (no. 64772/01, § 72, 9 November 2006), the Government emphasised that the mere fact that the information published might satisfy some kind of public curiosity was insufficient. They also referred to the conclusion reached by the Federal Court in its judgment of 28 April 2008 to the effect that, even though the circumstances of the accident had been unusual and had triggered a great deal of public emotion, it had nevertheless, in legal terms, simply been a road accident. The Government further contended that the interest triggered by the media coverage of the case could not per se amount to a “public interest” in the disclosure of classified information. More specifically, they disputed the idea that publishing the accused ’ s correspondence might be in the public interest, because the letters in question had shed no light on the circumstances of the accident and had related to the accused ’ s private life. The Government also submitted that the same applied to the publication of the extracts from the records of interviews. 40. As regards the balancing of the interests at stake, the Government reiterated that the general public ’ s right to receive information on judicial activities was subject to respect for the rights of others to the presumption of innocence, a fair trial and protection of private and family life, as secured by Articles 6 and 8 of the Convention. They emphasised in that context that the principle of subsidiarity which underpinned the Convention system meant that the balancing exercise in question was primarily a matter for the domestic courts, which requirement had been fulfilled in the present case because the Federal Court had conducted an in-depth assessment of the matter. 41. As regards the accused ’ s right to respect for his private life, the Government submitted that the impugned article had included a close-up photograph of him and a whole series of strictly personal details, including data from the interview records and statements by his wife and his doctor, in addition, of course, to the letters sent by the accused to the investigating judge providing details of his private life in prison. The Government also argued that the context of the article and the terms used had shown the accused ’ s personality in a particularly unfavourable and indiscreet light. The Government pointed out that Article 8 of the Convention entailed a positive obligation inherent in effective respect for private life, and that this positive obligation was especially important in the case of vulnerable persons, such as a prisoner, especially one who was apparently suffering from mental disorders. Referring to Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, § 104, ECHR 2012), the Government observed that the choice of the means calculated to secure compliance with Article 8 of the Convention fell within the States ’ margin of appreciation and that in the present case the application of Article 293 of the Criminal Code provided an appropriate means of protecting the accused ’ s private life. Lastly, the Government contended that the Chamber had evaded the issue of weighing up the applicant ’ s right to the exercise of the freedom of the press against the accused ’ s right to protection of his private life by merely noting that the accused had not brought any legal action to ensure the protection of that right even though he could have done so under Swiss law. They submitted that the existence of remedies to which the accused could have had recourse did not exempt the State from fulfilling its positive obligation. The Government added that the accused, who had been incarcerated and suffered from mental disorders, had probably not been in a position to commence legal proceedings in defence of his interests. 42. As regards the protection of the ongoing investigation and the presumption of innocence, the Government submitted that the fact that the hearing had been held more than two years after the publication of the impugned article and that the accused had been tried by professional judges rather than a lay jury had been unknown at the time of publication. They therefore argued that the Chamber had been wrong to take these facts into account in its judgment. Furthermore, the Government submitted that the Court could not expect them to provide proof that the disclosure of confidential information had caused actual and tangible harm to the interests protected. Such a requirement would deprive the secrecy of judicial investigations of much of its meaning. 43. As regards the proportionality of the penalty imposed, the Government emphasised that the fine had not exceeded half the applicant ’ s monthly income and had been assessed on the basis of factors including the applicant ’ s previous record. They also pointed out that it had not been the applicant himself but his employer who had paid the fine. C. The Court ’ s assessment 1. Existence of an interference “prescribed by law” and pursuing a “legitimate aim” 44. In its judgment of 1 July 2014, the Chamber noted that there had been no disagreement between the parties as to the fact that the applicant ’ s conviction had constituted an interference with his exercise of the right to freedom of expression as secured under Article 10 § 1 of the Convention. 45. Nor had it been disputed that the interference was prescribed by law, that is to say the Criminal Code and the Code of Criminal Procedure of the Canton of Vaud. 46. Furthermore, in its judgment (paragraphs 40-41) the Chamber found that the impugned measure had pursued legitimate aims, namely preventing “the disclosure of information received in confidence”, maintaining “the authority and impartiality of the judiciary” and protecting “the reputation [and] rights of others”; this was also not contested by the parties. 47. The Grand Chamber sees no reason to depart from the Chamber ’ s conclusions on these three points. 2. Necessity of the interference “in a democratic society” (a ) General principles 48. The general principles for assessing the necessity of an interference with the exercise of freedom of expression, which have been frequently reaffirmed by the Court since the judgment in Handyside v. the United Kingdom (7 December 1976, Series A no. 24), were summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007-V) and were restated more recently in Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015 ) and Pentikäinen v. Finland ([GC], no. 11882/10, § 87, ECHR 2015): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 49. Moreover, as regards the level of protection, there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in two fields, namely political speech and matters of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 46, ECHR 2007-IV; Axel Springer AG v. Germany [GC], no. 39954/08, § 90, 7 February 2012; and Morice, cited above, § 125). Accordingly, a high level of protection of freedom of expression, with the authorities thus having a particularly narrow margin of appreciation, will normally be accorded where the remarks concern a matter of public interest, as is the case in particular for remarks on the functioning of the judiciary, even in the context of proceedings that are still pending (see, mutatis mutandis, Roland Dumas v. France, no. 34875/07, § 43, 15 July 2010; Gouveia Gomes Fernandes and Freitas e Costa v. Portugal, no. 1529/08, § 47, 29 March 2011; and Morice, cited above, § 125). A degree of hostility (see E.K. v. Turkey, no. 28496/95, §§ 79-80, 7 February 2002, and Morice, cited above, § 125) and the potential seriousness of certain remarks (see Thoma v. Luxembourg, no. 38432/97, § 57, ECHR 2001-III, and Morice, cited above, § 125) do not obviate the right to a high level of protection, given the existence of a matter of public interest (see Paturel v. France, no. 54968/00, § 42, 22 December 2005, and Morice, cited above, § 125). 50. The press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, as well as the need to prevent the disclosure of information received in confidence, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports of Judgments and Decisions 1997-I; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999 ‑ III; Thoma, cited above, § § 43 - 45; and Tourancheau and July v. France, no. 53886/00, § 65, 24 November 2005). Indeed, the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism. The concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the contents of information which is collected and/or disseminated by journalistic means (see Pentikäinen, cited above, § 90, and the cases referred to therein). In its judgment in Pentikäinen, the Court pointed out that the concept of responsible journalism also embraces the lawfulness of the conduct of a journalist, and the fact that a journalist has breached the law is a relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly (ibid.). 51. In particular, it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or amongst the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them. However, consideration must be given to everyone ’ s right to a fair hearing as secured under Article 6 § 1 of the Convention, which, in criminal matters, includes the right to an impartial tribunal (see Tourancheau and July, cited above, § 66) and the right to the presumption of innocence (ibid., § 68). As the Court has already emphasised on several occasions (ibid., § 66; see also Worm v. Austria, 29 August 1997, § 50, Reports 1997 ‑ V; Campos Dâmaso, cited above, § 31; Pinto Coelho v. Portugal, no. 28439/08, § 33, 28 June 2011; and Ageyevy v. Russia, no. 7075/10, §§ 224-25, 18 April 2013 ): “This must be borne in mind by journalists when commenting on pending criminal proceedings since the limits of permissible comment may not extend to statements which are likely to prejudice, whether intentionally or not, the chances of a person receiving a fair trial or to undermine the confidence of the public in the role of the courts in the administration of criminal justice.” 52. Furthermore, when it is called upon to adjudicate on a conflict between two rights which enjoy equal protection under the Convention, the Court must weigh up the competing interests. The outcome of the application should not, in principle, vary according to whether it has been lodged with the Court under Article 8 of the Convention by the person who was the subject of the offending article or under Article 10 of the Convention by the author of that article, because these two rights deserve, in principle, equal respect (see Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011; and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 91, ECHR 2015). Accordingly, the margin of appreciation should in theory be the same in both cases (see Von Hannover (no. 2), § 106; Axel Springer AG, § 87; and Couderc and Hachette Filipacchi Associés, § 91, all cited above). 53. The Court considers that analogous reasoning must apply in weighing up the rights secured under Articles 10 and 6 § 1 respectively. 54. Lastly, the Court reiterates that account must be taken of the need to strike the right balance between the various interests involved. Because of their direct, continuous contact with the realities of the country, a State ’ s courts are in a better position than an international court to determine how, at a given time, the right balance can be struck. For this reason, in matters under Article 10 of the Convention, the Contracting States have a certain margin of appreciation in assessing the necessity and scope of any interference in the freedom of expression protected by that Article (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06 and 3 others, § 54, ECHR 2011), in particular when a balance has to be struck between conflicting private interests. Where the national authorities have weighed up the interests at stake in compliance with the criteria laid down in the Court ’ s case-law, weighty reasons are required if it is to substitute its view for that of the domestic courts (see MGN Limited v. the United Kingdom, no. 39401/04, §§ 150 and 155, 18 January 2011; Palomo Sánchez and Others, cited above, § 57; and, more recently, Haldimann and Others v. Switzerland, no. 21830/09, §§ 54-55, ECHR 2015 ). (b ) Application of these principles to the present case 55. In the present case, the applicant ’ s right to inform the public and the public ’ s right to receive information come up against equally important public and private interests which are protected by the prohibition on disclosing information covered by the secrecy of criminal investigations. Those interests are the authority and impartiality of the judiciary, the effectiveness of the criminal investigation and the right of the accused to the presumption of innocence and protection of his private life. The Court considers, as it did, mutatis mutandis, in Axel Springer AG (cited above, §§ 89-95) and Stoll (cited above, §§ 108-61), that it is necessary to specify the criteria to be followed by the national authorities of the States Parties to the Convention in weighing up those interests and therefore in assessing the “necessity” of the interference in cases involving a breach by a journalist of the secrecy of judicial investigations. Those criteria emerge from the aforementioned general principles, but also, to some extent, from the legislation of the thirty Council of Europe member States the Court surveyed in connection with the present application (see paragraphs 22-23 above). (i) How the applicant came into possession of the information in issue 56. The Court reiterates that the manner in which a person obtains information considered to be confidential or secret may be of some relevance for the balancing of interests to be carried out in the context of Article 10 § 2 (see Stoll, cited above, § 141). 57. In the present case it was not alleged that the applicant had obtained the information in question by unlawful means (see paragraph 12 above). Nevertheless, this is not necessarily a determining factor in assessing whether or not he complied with his duties and responsibilities when publishing the information. The fact is, as the Chamber rightly noted, that the applicant, as a professional journalist, could not have been unaware of the confidential nature of the information he was planning to publish (ibid., § 144). Moreover, at no point did the applicant dispute, either before the domestic courts or before the Court, the fact that publication of the information in question might fall within the scope of Article 293 of the Criminal Code (compare Dupuis and Others v. France, no. 1914/02, § 24, 7 June 2007). (ii) Content of the impugned article 58. The Court reiterates that the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see Stoll, cited above, § 103). Furthermore, Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed. Consequently, it is not for this Court, or for the national courts for that matter, to substitute their own views for those of the press as to what reporting technique should be adopted by journalists (ibid., § 146; see also Laranjeira Marques da Silva v. Portugal, no. 16983/06, § 51, 19 January 2010). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; Thoma, cited above, §§ 45-46; Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003 ‑ V; and Ormanni v. Italy, no. 30278/04, § 59, 17 July 2007). 59. In the present case, the Court notes that in its judgment of 29 April 2008 the Federal Court conducted a lengthy assessment of the article, concluding that “[t]he manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence.” 60. For its part, the Court notes that, even though the impugned article did not take a specific stance on the intentional nature of the offence the accused was alleged to have committed, it nevertheless painted a highly negative picture of him, adopting an almost mocking tone. The headlines used by the applicant – “Questioning of the mad driver”, “the reckless driver ’ s version” and “He lost his marbles...” – as well as the large close-up photograph of the accused accompanying the text, leave no room for doubt that the applicant had wanted his article to have a sensationalist tone. Moreover, the article emphasised the vacuity of the accused ’ s statements and his many contradictions, which were often explicitly described as “repeated lies”, concluding with the question whether, by means of “this mixture of naivety and arrogance”, M.B. was “doing everything in his power to make himself impossible to defend”. The Court emphasises that those were precisely the kind of questions that the judicial authorities were called upon to answer, at both the investigation and the trial stages. 61. On this point the Court likewise sees no weighty reason to call into question the fully reasoned decision of the Federal Court. (iii) Contribution of the impugned article to a public-interest debate 62. In its judgment of 1 July 2014, the Chamber noted that the incident which had been the subject of the criminal proceedings in issue had immediately attracted public interest and led many media outlets to cover the case and its handling by the criminal justice system. 63. The Court reiterates that it has already held that the public has a legitimate interest in the provision and availability of information on criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest (see Morice, cited above, § 152). 64. In the present case the Court accepts that the subject of the article, namely the criminal investigation into the Lausanne Bridge tragedy, was a matter of public interest. This highly exceptional incident had triggered a great deal of emotion among the population, and the judicial authorities had themselves seen fit to inform the press of certain aspects of the ongoing inquiry (see paragraph 11 above). However, the question arising here is whether the content of the article and in particular the information which was covered by the secrecy of judicial investigations were capable of contributing to the public debate on this issue (see Stoll, cited above, § 121; see also Leempoel & S.A. ED. Ciné Revue, cited above, § 72 ) or served purely to satisfy the curiosity of a particular readership regarding the details of the accused ’ s private life (see, mutatis mutandis, Von Hannover v. Germany, no. 59320/00, § 65, ECHR 2004 ‑ VI; Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; Hachette Filipacchi Associés ( ICI PARIS ), cited above, § 40; and Mosley, cited above, § 114). 65. The Court notes in this connection that after an in-depth assessment of the content of the article, the nature of the information provided and the circumstances surrounding the “Lausanne Bridge” case, the Federal Court, in a lengthily reasoned judgment which contained no hint of arbitrariness, held that neither the disclosure of the records of interviews nor that of the letters sent by the accused to the investigating judge had provided any insights relevant to the public debate and that the interest of the public in this case had at the very most “ involved satisfying an unhealthy curiosity” (see paragraph 16 above). 66. For his part, the applicant failed to demonstrate how the fact of publishing records of interviews, statements by the accused ’ s wife and doctor and letters sent by the accused to the investigating judge concerning banal aspects of his everyday life in detention could have contributed to any public debate on the ongoing investigation. 67. Accordingly, the Court sees no weighty reason to substitute its own view for that of the Federal Court (see, mutatis mutandis, MGN Limited, §§ 150 and 155; Palomo Sánchez and Others, § 57; and Haldimann and Others, §§ 54-55, all cited above), which had a certain margin of appreciation in such matters. (iv) Influence of the impugned article on the criminal proceedings 68. While emphasising that the rights guaranteed by Article 10 and Article 6 § 1 deserve equal respect in principle (see paragraph 53 above), the Court reiterates that it is legitimate for special protection to be afforded to the secrecy of a judicial investigation, in view of what is at stake in criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent (see Dupuis and Others, cited above, § 44). It emphasises that the secrecy of investigations is geared to protecting, on the one hand, the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed and, on the other, the interests of the accused, notably from the angle of presumption of innocence and, more generally, his or her personal relations and interests. Such secrecy is also justified by the need to protect the opinion-forming and decision-making processes within the judiciary. 69. In the instant case, even though the impugned article did not openly support the view that the accused had acted intentionally, it was nevertheless set out in such a way as to paint a highly negative picture of him, highlighting certain disturbing aspects of his personality and concluding that he was doing “everything in his power to make himself impossible to defend” (see paragraph 60 above). It is undeniable that the publication of an article slanted in that way at a time when the investigation was still ongoing entailed an inherent risk of influencing the course of proceedings in one way or another, whether in relation to the work of the investigating judge, the decisions of the accused ’ s representatives, the positions of the parties claiming damages, or the objectivity of the trial court, irrespective of its composition. 70. The Grand Chamber considers that a government cannot be expected to provide ex post facto proof that this type of publication actually influenced the conduct of a given set of proceedings. The risk of influencing proceedings justifies per se the adoption by the domestic authorities of deterrent measures such as prohibition of the disclosure of secret information. The lawfulness of those measures under domestic law and their compatibility with the requirements of the Convention must be capable of being assessed at the time of the adoption of the measures, and not, as the applicant submits, in the light of subsequent developments revealing the actual impact of the publications on the trial, such as the composition of the trial court (see paragraph 35 above). 71. The Federal Court was therefore right to hold, in its judgment of 29 April 2008, that the records of interviews and the accused ’ s correspondence had been “discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court ”. (v) Infringement of the accused ’ s private life 72. The Court reiterates that the right to protection of reputation is a right which is protected by Article 8 of the Convention as part of the right to respect for private life (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004 ‑ VI; Polanco Torres and Movilla Polanco v. Spain, no. 34147/06 § 40, 21 September 2010; and Axel Springer AG, cited above, § 83 ). The concept of “private life” is a broad term which is not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person, and can therefore embrace multiple aspects of the person ’ s identity such as, for example, gender identification, sexual orientation, name and elements relating to a person ’ s right to his or her image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). It covers personal information which individuals can legitimately expect should not be published without their consent (see Flinkkilä and Others v. Finland, no. 25576/04, § 75, 6 April 2010, and Saaristo and Others v. Finland, no. 184/06, § 61, 12 October 2010). In order for Article 8 to come into play, however, an attack on a person ’ s reputation must attain a certain level of seriousness and be carried out in a manner causing prejudice to personal enjoyment of the right to respect for private life (see Axel Springer AG, cited above, § 83). 73. Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see X and Y v. the Netherlands, 26 March 1985, § 23, Series A no. 91; Armonienė v. Lithuania, no. 36919/02, § 36, 25 November 2008; Von Hannover (no. 2), cited above, § 98; and Söderman v. Sweden [GC], no. 5786/08, § 78, ECHR 2013). That also applies to the protection of a person ’ s picture against abuse by third parties (see Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002; Von Hannover, cited above, § 57; Reklos and Davourlis v. Greece, no. 1234/05, § 35, 15 January 2009; and Von Hannover (no. 2), cited above, § 98). 74. The Court notes that in order to fulfil its positive obligation to safeguard one person ’ s rights under Article 8, the State may have to restrict to some extent the rights secured under Article 10 for another person. When examining the necessity of that restriction in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely, on the one hand, freedom of expression as protected by Article 10 and, on the other, the right to respect for private life as enshrined in Article 8 (see Hachette Filipacchi Associés ( ICI PARIS ), § 41; MGN Limited, § 142; and Axel Springer AG, § 84, all cited above). 75. The Government argued that in the present case the Swiss authorities had both a negative and a positive obligation to protect the accused ’ s private life. The Government rightly observed that the choice of means calculated to secure compliance with this positive obligation fell within the States ’ margin of appreciation. They submitted that Article 293 of the Criminal Code, which made it an offence to disclose classified information, fulfilled that function. 76. The Court has already examined under Article 8 the issue of respect for an accused person ’ s private life in a case involving a violation of the secrecy of judicial investigations. In Craxi v. Italy (no. 2) (no. 25337/94, § 73, 17 July 2003) it held that the national authorities were not merely subject to a negative obligation not to knowingly disclose information protected by Article 8, but that they should also take steps to ensure effective protection of an accused person ’ s right to respect for his correspondence. Consequently, the Court considers that the criminal proceedings brought against the applicant by the cantonal prosecuting authorities were in conformity with the positive obligation incumbent on Switzerland under Article 8 of the Convention to protect the accused person ’ s private life. Furthermore, the information disclosed by the applicant was highly personal, and even medical, in nature, including statements by the accused ’ s doctor (see paragraph 10 above), as well as letters sent by the accused from his place of detention to the investigating judge responsible for the case. The Court takes the view that this type of information called for the highest level of protection under Article 8; that finding is especially important as the accused was not known to the public and the mere fact that he was the subject of a criminal investigation, albeit for a very serious offence, did not justify treating him in the same manner as a public figure, who voluntarily exposes himself to publicity (see, mutatis mutandis, and by contrast, Fressoz and Roire, cited above, § 50, and Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). 77. In its judgment of 1 July 2014, the Chamber held that the protection of the accused ’ s private life, particularly the secrecy of correspondence, could have been ensured by means less damaging to the applicant ’ s freedom of expression than a criminal conviction. The Chamber took the view that in order to uphold his rights under Article 8 of the Convention, the accused could have had recourse to the civil-law remedies available to him under Swiss law. The Court considers that the existence of those civil-law remedies under domestic law for the protection of private life does not release the State from its positive obligation deriving, in each individual case, from Article 8 of the Convention vis-à-vis a person accused in criminal proceedings. 78. At all events, as regards the particular circumstances of the present case, it should be noted that when the impugned article was published the accused was in prison, and therefore in a situation of vulnerability. Moreover, there is nothing in the case file to suggest that he was informed of the publication of the article and of the nature of the information it provided. In addition, he was probably suffering from mental disorders, thus increasing his vulnerability. In those circumstances, the cantonal authorities cannot be blamed for considering that, in order to fulfil their positive obligation to protect M.B. ’ s right to respect for his private life, they could not simply wait for M.B. himself to take the initiative in bringing civil proceedings against the applicant, and for consequently opting for an active approach, even one involving prosecution. (vi) Proportionality of the penalty imposed 79. The Court reiterates that the nature and severity of the penalties imposed are further factors to be taken into account when assessing the proportionality of an interference (see, for example, Stoll, cited above, § 153). Furthermore, the Court must be satisfied that the penalty does not amount to a form of censorship intended to discourage the press from expressing criticism. In the context of a debate on a topic of public interest, such a sanction is likely to deter journalists from contributing to public discussion of issues affecting the life of the community. By the same token, it is liable to hamper the press in performing its task as purveyor of information and public watchdog. In that connection, the fact of a person ’ s conviction may in some cases be more important than the minor nature of the penalty imposed (ibid., § 154). 80. Moreover, the Court notes that the disclosure of information covered by the secrecy of judicial investigations is punishable in all thirty Council of Europe member States whose legislation was studied in the present case (see paragraphs 22-23 above). 81. It is true that the dominant position of the State institutions requires the authorities to show restraint in resorting to criminal proceedings in matters of freedom of expression (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236; Incal v. Turkey, 9 June 1998, § 54, Reports 1998-IV; Lehideux and Isorni v. France, 23 September 1998, § 57, Reports 1998-VII; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999-VI; Otegi Mondragon v. Spain, no. 2034/07, § 58, ECHR 2011; and Morice, cited above, § 127). Nevertheless, in the present case, the Court considers that the recourse to criminal proceedings and the penalty imposed on the applicant did not amount to disproportionate interference in the exercise of his right to freedom of expression. The applicant was originally given a suspended sentence of one month ’ s imprisonment (see paragraph 13 above). His sentence was subsequently commuted to a fine of CHF 4,000, which was set having regard to the applicant ’ s previous record and was not paid by the applicant but was advanced by his employer (see paragraph 14 above). This penalty was imposed for breaching the secrecy of a criminal investigation and its purpose, in the instant case, was to protect the proper functioning of the justice system and the rights of the accused to a fair trial and respect for his private life. The Court takes the view that, in those circumstances, it cannot be maintained that such a penalty was liable to have a deterrent effect on the exercise of freedom of expression by the applicant or any other journalist wishing to inform the public of ongoing criminal proceedings. (vii) Conclusion 82. In view of the foregoing, and having regard to the margin of appreciation available to States and to the fact that the exercise of balancing the various competing interests was properly conducted by the Federal Court, the Court concludes that there has been no violation of Article 10 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the penalty imposed on the applicant had been justified. It considered in particular that the publication of an article slanted in the way it had been at a time when the investigation was still ongoing comprised the inherent risk of influencing the conduct of proceedings which had in itself justified the adoption by the domestic authorities of deterrent measures, such as a ban on disclosing confidential information. While accepting that the accused could have had recourse to civil-law remedies to complain of interference in his private life, the Court nevertheless held that the existence in domestic law of remedies to which the accused could have had recourse did not dispense the State from its positive obligation to protect the private life of all persons charged in criminal proceedings. Finally, the Court found that the penalty imposed on the journalist for violation of secrecy, geared to protecting the proper functioning of justice and the accused’s rights to a fair trial and respect for his private life, had not amounted to disproportionate interference in the exercise of his right to freedom of expression