Freedom of expression – Article 10 – Photographs – Court reporting – Article 8 – Privacy
Two Norwegian journalists alleged that their convictions and fines for publishing a photograph of a person leaving a court building, an act prohibited under Norwegian law, was a violation of Article 10. The photographs in question depicted one of the defendants in the highest profile triple murder trial in Norwegian history leaving court after her conviction. The defendant had broken down listening to the judgment and suffered a ‘physical reaction in the form of nausea’ and had spent time composing herself before emerging. The defendant’s lawyer tried to prevent the photograph being taken. Images of the defendant had been published previously.
Whether the convictions and fines, which constituted an interference with the journalists’ freedom of expression guaranteed under Article 10, were necessary in a democratic society.
Holding that there was no violation of Article 10;
Domestic legal provisions to protect defendants and witnesses in criminal proceedings should be afforded a wide margin of appreciation, to include privacy in accordance with Article 8 (as recommended by the Committee of Ministers of the Council of Europe in Rec(2003)13) and to ensure fair administration of justice in accordance with Article 6.
The qualifications under Article 10(2) included the duty not to disseminate photographs revealing personal and intimate information and this applied within the context of reporting criminal proceedings. There were obvious hallmarks of distress in the photographs published. It was immaterial that the defendant pictured had cooperated with the media on previous occasions.
In what is bound to be considered a controversial case, the court’s decision was based both on the desirability of protecting the privacy of the person convicted as safeguarding due process—the two factors contributing to a pressing social need that outweighed the freedom to publish. The Court suggested that the privacy issue had been ‘predominant’ in its reasoning. This decision certainly builds upon the existing jurisprudence of the Court where privacy interests in photographs are concerned—the public interest in the underlying subject matter in this case being much more acute than in von Hannover v Germany. The Court does not appear to have considered the public interest in disclosing the emotional impact of convictions as having a deterrent affect on serious crime. This decision arose out of the same facts as P4 Radio Hele Norge ASA v Norway, application no. 76682/01.