Lorna Woods, Professor of Internet Law, University of Essex

A recent ruling by the European Court of Human Rights in the case of Bremner v Turkey provides clarity on the use of hidden cameras by journalists and potential human rights violations. The case involved an Australian citizen, Bremner, who was secretly filmed in his apartment discussing Christianity for a documentary about “foreign peddlers of religion” in Turkey. The program aired footage of Bremner with his face unblurred. Despite suing the filmmakers unsuccessfully, citing public interest in the topic, Bremner brought his case to the ECHR, claiming a violation of Article 8 (right to private life) due to the program’s content and lack of compensation from Turkish courts. He argued that the program exposed him to potential threats and also referenced Articles 6 (right to a fair trial), 9 (right to religion), and 10 (freedom of expression).

The Court affirmed that using unwanted photos or videos, as in this instance, triggers Article 8 obligations. It emphasized the State’s responsibility to safeguard private life, even in interactions between individuals, referencing the Fernandez Martinez v. Spain Grand Chamber decision. While acknowledging occasional blurring between the positive and negative aspects of this right, the Court stressed the importance of balancing individual and public interests in this context. It reiterated that when balancing Articles 8 and 10, the outcome should be consistent regardless of whether the case is brought by the subject (under Article 8) or the media (under Article 10), applying the same margin of appreciation. The Court acknowledged the importance of the press, reflecting the Turkish government’s arguments, but also considered factors from Axel Springer and Von Hannover regarding the public interest’s scope when weighed against the right to privacy. Though the documentary’s subject was deemed to be of public interest (and not hate speech), the Court determined that techniques like hidden cameras could harm private life and should be used cautiously and ethically. While not entirely dismissing such techniques (citing De La Flor Cabrera, where video surveillance used as court evidence was acceptable), the Court suggested they be a last resort when information cannot be obtained otherwise.

When balancing freedom of expression with the right to private life, the Court determined that Bremner was not a public figure and was not operating in the public sphere, contrary to the Turkish Government’s claims. They rejected the argument that Bremner’s status as a journalist made him a public figure, noting he wasn’t acting in that capacity and was unknown to the Turkish public. There was no indication he would face public scrutiny; he believed he was having a private discussion about Christianity.

Regarding the failure to obscure Bremner’s face, the Court highlighted that the Turkish courts hadn’t considered if his identification, given his lack of fame, served the public interest. The Court distinguished this case from Haldimann, where journalists’ Article 10 rights were deemed violated because they had pixelated the subject’s face and altered their voice. Thus, even with the margin of appreciation, the Turkish courts failed to adequately balance freedom of expression with Bremner’s Article 8 rights, leading to a violation.

Bremner’s claim regarding freedom of religion was deemed inadmissible due to his failure to exhaust national remedies. His other two claims were also dismissed.

Comment

Following closely on the heels of Haldimann, this case also tackles covert journalistic practices, yet presents a contrasting outcome. In Haldimann, journalists received minor fines for filming undercover, which the Court deemed an Article 10 violation. In Bremner, an Article 8 case, the State was found inadequate in safeguarding privacy. Both cases used the Axel Springer principles: public interest contribution, the subject’s notoriety and the report’s subject matter, the individual’s prior conduct, information acquisition methods, and the report’s accuracy, content, style, consequences, and any resulting penalties. In Haldimann, the Court noted that despite the subject being a private individual, the report targeted commercial practices, not the person, addressed a matter of public interest, and significantly, obscured his face and altered his voice. The Court consistently maintains that safeguards for journalists reporting on public interest matters hinge on good faith, adherence to journalistic ethics, and sufficient factual basis. In Haldimann, the subject didn’t even dispute the report’s accuracy. The case was significant for acknowledging permissible infringement on a private individual’s Article 8 rights, in contrast to public figures.

Bremner demonstrates the boundaries of this allowance. A key difference was Bremner’s unobscured face being broadcasted, unlike the pixelation in Haldimann. The Bremner Court implied that broadcasting an individual’s face without blurring could be problematic regardless of the story’s significance [para 81]. Another distinction, though less emphasized by the Court, was the intrusion occurring in Bremner’s home. While Article 8 applies to businesses, invading one’s home arguably carries more weight than a business intrusion. Even in Haldimann, it was unclear if the Court would condone intrusion if alternative evidence-gathering methods existed. Bremner reiterated that such tactics should be a last resort. While this adds complexity, it aligns with broadcasters’ practices in this country and even the Editors’ Code for press conduct. What is evident, mirroring the older case of Peck, is that disguising private individuals’ identities in broadcasts through pixellation or other methods is crucial and often distinguishes acceptable from unacceptable practices. Less clear is whether filming individuals in their homes constitutes a separate infringement requiring state protection.

Barnard & Peers: chapter 9

Photo credit: http://karachi.newspakistan.pk/2012/01/13/investigative-journalism-is-it-ethical-to-use-hidden-cameras/