Information Note on the Court’s case-law No. 153
June 2012
Schweizerische Radio- und Fernsehgesellschaft SRG v. Switzerland - 34124/06
Judgment 21.6.2012 [Section V]
Article 10
Article 10-1
Freedom of expression
Absolute prohibition on filming an interview with an inmate inside prison: violation
Facts – In August 2004 the applicant, a radio and television broadcasting company, requested permission to film a prisoner serving a sentence for murder, with a view to broadcasting the interview in a feature on the trial of another person accused in the same case. The prisoner concerned, whose case had attracted a great deal of media interest, had agreed to the interview. The request was refused, for reasons concerning the need to maintain peace, order and security in the prison and to ensure equal treatment among the prisoners. The applicant company lodged various appeals against the decision, but to no avail.
Law – Article 10: The refusal to authorise the applicant company to film inside a prison for a television programme, notably to interview a detainee, had amounted to interference with freedom of expression. The interference had been provided for by law and pursued the aims of preventing disorder and protecting the rights of others. However, as freedom of expression in the context of a television broadcast devoted to a subject of particular public interest was in issue, the margin of appreciation open to the Swiss authorities in determining whether or not the offending measure met a “pressing social need” had been narrow. There had, on the face of it, been grounds to consider that the rejection of the applicant company’s request was necessary in a democratic society – in particular with regard to the presumption of innocence of a person whose trial was imminent, and the interests of the proper administration of justice. However, the domestic authorities should have properly examined whether, for reasons concerning security and the rights of the other detainees, the refusal of permission to film inside the prison had been actually and effectively necessary in the present case.
In particular, they should have taken into consideration the concessions the applicant company had been prepared to make, such as filming at a time when the other detainees were working, and keeping the interview short. In its appeals the applicant company had suggested that the interview might be filmed in the visiting room, which could have been kept closed for the occasion. The domestic authorities did not appear, however, to have taken these arguments into account. That being so, the argument that the filming would have interfered with the private lives of the other detainees appeared neither relevant nor sufficient to justify the interference with the applicant company’s freedom of expression. Concerning the need to maintain order and security in the prison, neither the domestic authorities nor the Government had explained how, in practice, order and security in the prison could have been effectively threatened, especially if the interview had been filmed in the restricted conditions proposed by the applicant company, by a single cameraman accompanied by one journalist, whose presence would hardly have been likely to disturb the functioning of the establishment or threaten security there.
Furthermore, Article 10 protected not only the substance of the ideas and information expressed but also the means by which they were conveyed. It was therefore not for the domestic courts or for the Court to substitute their own views for those of the media as to what technique of reporting journalists should adopt. Thus the fact that a telephone interview with the prisoner had been broadcast by the applicant company in a programme that was available on its web site was not relevant: different means and techniques had been used for the interview, it had not had such a direct impact on viewers and it had been broadcast in the framework of another programme. Accordingly, broadcasting the interview had not in any way remedied the interference caused by the refusal of permission to film in the prison.
It was true that the national authorities were better placed than the Court to decide whether and to what extent allowing outsiders into a prison was compatible with order and security there. However, having regard in particular to the rather summary reasoning given by the national authorities and the absence in their decisions of any real balancing of the interests involved, they had failed to demonstrate convincingly that the absolute ban imposed on the applicant company’s filming in the prison had been strictly proportionate to the aims pursued.
Conclusion: violation (five votes to two).
Article 41: no award.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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