Article 10 – Journalistic sources – Responsible journalism – National interests
An anonymous source provided a Swiss journalist with a confidential briefing document prepared by the Swiss Ambassador to the Unted States containing guidance on how the Swiss government should conduct negotiations with the World Jewish Congress over wartime assets of Holocaust victims held in Swiss banks. Two articles critical of the Ambassador were published in Sonntags-Zeitung. The Swiss press regulator upheld a complaint, ruling that the coverage had been unncessarily sensationalist but rejecting the Government claim of confidentiality. The journalist was convicted and fined.
In the European Court of Human Rights the Chamber upheld the application in 2006 (4 to 4). The Grand Chamber then considered the matter.
Whether the journalist’s conviction and fine were a violation of Article 10 and a justified interference with freedom of expresssion.
Dismissing the application,
1. The journalism addressed a debate of public interest. The Court noted the counterveiling interest that diplomatic papers should not be disclosed.
2. Publication did not undermine the diplomatic negotiations but were capable of damaging Swiss national interests.
3. A focus on the applicant’s conduct led the Court to agree with the Swiss press regulator that the coverage had been selective, sensationalist and avid for scandal although no law was known to have been broken.
4. The domestic penalty was proportionate.
The Grand Chamber’s reversal of the earlier ECHR decision dashed expectations that this case would lead to reform of the Swiss criminal code in favour of journalistic disclosures. The Court emphasised that restrictions on press freedom, particularly of political speech, should be limited and decided the case on a series of responsible journalism criteria familiar from Reynolds jurisprudence rather than on grounds of confidentiality or national interest.