Television broadcasting of testimonies and intercepted conversations, taken illegally. Exceeding the limits of responsible journalism. No violation of freedom of expression
JUDGMENT
Thomaidis v. Greece 07.05.2024 (app. no. 28345/2016)
SUMMARY
Freedom of expression and limits to the legitimacy of journalism.
The applicant journalist, in a television programme concerning the staged football matches, disclosed witness statements from ongoing criminal proceedings and never revealed the source of the illegally intercepted evidence. He was ordered by the courts to pay EUR 10 000 in damages. He appealed to the ECHR for violation of freedom of expression.
The ECtHR found that the applicant illegally disseminated witness statements from a pending criminal case, knowing that they had been obtained illegally. It aimed at a shocking revelation of the alleged role of the EPO Vice President and President of a football club in match-fixing and the content of the broadcasts invited viewers to come to a predetermined conclusion about his guilt.
The ECtHR held that the applicant had exceeded the limits of responsible journalism. Therefore, the interference with the applicant’s exercise of his right to freedom of expression could reasonably be considered “necessary in a democratic society” within the meaning of Article 10 § 2 ECHR and the Greek authorities acted within their margin of appreciation to strike a fair balance between the competing interests at stake. The Court concluded that there was no violation of the applicant’s freedom of expression (Article 10 ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
In 2011 criminal proceedings were initiated against several stakeholders of Greek professional football for allegedly fixing matches. Among the accused was Mr. V.M., the chairman of a football club and Vice‑Chairman of the Hellenic Football Federation at the time.
The applicant is a journalist and the main presenter of the live television programme “Trial at SKAI” (“η δίκη στον ΣΚΑΙ”) which is broadcast by the nationwide television station “SKAI”.
The programme broadcast on 22 October 2012 was partly devoted to the subject of the reorganisation of the national football championships. During the programme the applicant produced a witness statement dating back to 2010, which was part of the main investigation into alleged match fixing. The applicant quoted from the statement, describing how A.M. (the chairman of a football club) had approached an Italian referee and claimed that he had collaborated with V.M. A.M. had then unsuccessfully attempted to bribe an Italian referee. Subsequently, V.M. had attempted to bribe the Italian referee through another referee, D., again without success, and V.M.’s team lost that match.
On 8 November 2012, on the television programme’s website, the applicant announced that A.K., a lawyer by profession and chairman of another football club, would make revelations about the match fixing scandal.
In a legal letter (εξώδικη διαμαρτυρία) served on the television station, the applicant and A.K. on 12 November 2012, V.M. complained that he had been repeatedly defamed by the television programme through the presentation of false facts and the unlawful use of audiovisual material and requested that they abstain from making any further malicious, insulting or defamatory reference to him and from presenting unlawful audiovisual material and intercepted evidence, while stating that he reserved all his legal rights.
On 12 November 2012 A.K. appeared on the programme and made comments about V.M. such as “since V.M. bought the shares … there is literally a junta in Greek football” and “today everybody will understand … who should go to prison, because football cannot tolerate this criminal organisation any longer, this junta which dominates …”. A.K. further stated: “I was on the receiving end of terrible and slanderous behaviour by V.M., which I return to him in full measure and as of tonight all the Greek people and fans will learn who are the trash of Greek football and … who should go to jail”. A.K. also read out lengthy parts of the records of intercepted conversations between A.M. and others, which indicated alleged attempts by V.M. to bribe referees and also contained some vulgar language. He further alleged that V.M. had been involved in a violent incident organised by the supporters of his football club’s fans against A.K.
At some point A.M. intervened by phone and complained that unlawfully intercepted conversations were being read out. A guest on the programme remarked that they had become listeners and not participants in a debate. The applicant stated that he could not condone A.K.’s views or the records of the intercepted conversations. He also remarked that “unlawful, intercepted transcripts of conversations” had been read out. However, he did not prevent A.K. from reading out or commenting on the transcripts.
It is apparent from the case file that the investigation into the allegations of match fixing attracted the attention of the media at the time. The issue had been made public before the two broadcasts and A.K. had previously shared in public information on the intercepted conversations.
- PROCEEDINGS AGAINST THE APPLICANT
On 19 November 2012 V.M. lodged a civil action against the applicant seeking compensation in the amount of about 500,000 euros (EUR) for non‑pecuniary damage sustained on account of an infringement of his right to protection of his personality.
In judgment no. 2891/2013 of 20 May 2013 the Piraeus Court of First Instance held that the publication during the first broadcast of the witness statement, which formed part of the criminal investigation and the applicant’s allowing the reading out of records of unlawfully intercepted conversations accompanied by insulting and defamatory comments made by A.K., who had been invited on the programme of 12 November 2012, had damaged V.M.’s honour and reputation and his social and professional position as a high-level stakeholder in Greek football. The publication of the witness statement in question had no connection with, and had not been necessary for the discussion of the reorganisation of the championship which followed, and it was already known to the public. It was expressly prohibited pursuant to Presidential Decree no. 77/2003, and the manner by which it had been made suggested that it aimed at insulting. The same applied to the second broadcast. It had not contributed to informing the public, since the allegations had already been known, but had aimed at providing A.K. with an opportunity to make insulting and defamatory comments in view of his personal quarrel with V.M. through the reading of the content of the unlawfully intercepted conversations. No commenting or substantial discussion among the guests had taken place. The fact that the applicant had declared that he had not endorsed A.K.’s views and that the transcripts of unlawfully intercepted conversations had been read out did not absolve him from his responsibility as the main presenter of the broadcast who allowed A.K. to air them and to make insulting comments. The court then examined the extent of the damage caused to V.M.’s reputation. It found that, in view of the national reach of the channel and its wide audience, which included sports professionals and football fans, the damage was significant. In view of the type, extent and conditions of the damage caused, the applicant’s responsibility for that damage and his intent to cause it, the time and place of the events, the wide publicity and its impact on V.M.’s professional, social and financial situation, the court found it reasonable to award EUR 10,000 to be paid to V.M. for non‑pecuniary damage.
On 6 March 2014 the Piraeus Court of Appeal, by judgment no. 186/2014, dismissed the applicant’s appeal and confirmed the award of damages. The Court of Appeal endorsed the judgment of the Piraeus Court of First Instance. It held that the content of the television programmes has been defamatory and harmful to the honour and reputation of V.M. and that the way in which the programmes had been constructed by the applicant indicated his intent to insult V.M. In this respect the court emphasised that the dissemination of the witness statement from an investigation file read out by the applicant was prohibited by law and that the conversations read out by A.K. had been unlawfully intercepted. In addition, the dissemination of the information in question had been unnecessary for public awareness as it had already been known to the public. The applicant’s reading of the witness statement in the first programme had also been irrelevant to the discussion that followed on the restructuring of the Greek championship. In the second programme the applicant had, further, allowed A.K. to read the transcripts of unlawfully obtained conversations and make offensive comments about V.M., even though V.M. had called upon them to refrain from such behaviour. The court also noted that the applicant allowed A.K.’s remarks about V.M., in a context where there existed an intense dispute between the two men, without contributing to the viewers’ awareness of the issue of match fixing in Greek football. As to the applicant’s defence that his purpose was to inform the public and contribute to an in-depth discussion about match fixing, the court rejected it as no new revelations were made and no information was added for an in-depth investigation of the issue. Even though the applicant had, during the second programme, declared that he did not endorse A.K.’s views and that the transcripts read out were unlawfully obtained, he had planned the programmes in a way that indicated his intent to insult V.M. and failed to prevent A.K. from reading them out and making his insulting statements. The applicant’s defence that he could not be responsible for the impugned content of his programmes was, thus, also rejected.
The Court of Cassation, by its judgment no. 1158/2015 of 31 August 2015, dismissed an appeal on points of law lodged by the applicant. The court agreed that the programmes broadcast constituted an insult to the plaintiff and found that the judgments rendered had been in compliance with Article 10 of the Convention and Article 14 of the Constitution on freedom of expression and press. It had also been in compliance with Articles 57 and 59 of the Civil Code on non-pecuniary damage for the infringement of personality rights combined with Articles 914 and 932 on tort liability, read in conjunction with the provisions of the Penal Code prohibiting insult. The Court of Cassation equally dismissed the applicant’s claim that the broadcast of the materials had been motivated by public interest and covered by journalistic freedom, noting the illegality of dissemination of the witness statement from the investigation file and the airing of unlawfully intercepted conversations, that their content had already been known to the public, and that no related discussion took place during the television programmes in question. Instead, it found that the design and content of both programmes, in particular that of 12 November 2012, had aimed to insult V.M. and attack his reputation. It concluded that the interference with the applicant’s journalistic freedom had been proportionate in the circumstances.
It is apparent from the case file that in 2021 V.M. was acquitted of match fixing and of involvement in a criminal organisation.
THE DECISION OF THE COURT…
The Court recalled that the press plays an essential role in a democratic society and has a duty to disseminate information and ideas on matters of public interest. However, the protection afforded by Article 10 ECHR to journalists is subject to the condition that they act in good faith in order to provide accurate and reliable information in accordance with the principles of responsible journalism. Moreover, the concept of responsible journalism includes the legality of a journalist’s conduct and the fact that a journalist has broken the law is a crucial, though not decisive, element in determining whether he or she has acted responsibly. Where a particular piece of information is already known to the public, the interest in maintaining its confidentiality may no longer be a compelling requirement. However, this factor will not necessarily remove the protection of Article 8, especially if the person concerned has not consented to its disclosure (see N.Š. v. Croatia, 10.09.2020, no. 36908/13, § 100).
α) On the lawfulness of the applicant’s conduct
It is not disputed that, on 22 October 2012, the applicant had unlawfully broadcast on his programme the witness statements from a pending criminal case and that the conversations disclosed on the programme on 12 November 2012 had been unlawfully intercepted. This was accepted by the national courts and not contested by the applicant. This element played a role in the balancing of interests that the Court of Justice made. The Court found that the national courts were right to emphasise this as part of their balancing of interests in the case, as the applicant, as a professional journalist, could not claim that he was unaware in good faith of the illegal means by which the recordings were obtained or that the disclosure of the witness statements violated the relevant legislation.
(b) Content of the broadcasts
As regards the content of the contested television programmes, the national courts concluded that they were deliberately defamatory and damaging to V.M.’s honour and reputation and to his social and professional standing in Greek football. It also concluded that the recordings of the conversations and allegations against V.M. made by A.K., accompanied by offensive language, were presented in the context of a heated dispute between the two men, without further contributing to the awareness of the spectators about the cases of match-fixing.
The Court noted, as did the domestic courts, that the applicant made no effort in the October television programme to frame the information about the allegations against B.M. in a wider public interest debate about the investigation of the match-fixing cases. The same was true, as the domestic courts pointed out, of the November programme, which the applicant prepared knowing in advance not only about the dispute between the two men but also about the main content of A.K.’s contribution, as the announcement made before the programme suggested. Moreover, the Court noted that the applicant did not claim that he had attempted to give B.M. the opportunity to respond to the allegations made against him and that he had allowed A.K. to proceed with an extensive reading of the transcripts of the intercepted conversations without making any attempt to balance the negative views contained therein. The Court concluded from all of the above that the applicant was aiming for a sensationalist coverage of B.M.’s alleged role in match-fixing and invited viewers to reach a predetermined conclusion about his guilt.
c) Contributing to a debate in the public interest
It is true that the criminal investigation of the match-fixing cases was a matter of public interest, a problem about which the public had an interest in being informed and which was widely reported in the Greek sports media. However, the national courts, in reasoned decisions, held that, since the information contained in the witness statements and intercepted conversations was already known to the public, its disclosure did not contribute to informing the public. In this respect, a distinction must be drawn between the subject matter of the criminal investigation into the cases of match-fixing in the public interest and the way in which the applicant prepared and conducted his broadcasts. The disclosures of the statements were not followed by any further discussion on the issue of match-fixing cases. Furthermore, in addition to the fact that the allegations about B.M.’s involvement in match-fixing had already been disclosed more than a year earlier, A.K. himself indicated that he was reacting to B.M.’s earlier remarks and his conduct appeared to be part of a personal dispute.
(d) On influence in the criminal proceedings
The Court noted that the statement read out by the applicant in the October broadcast was clearly covered by the confidentiality of the criminal investigation in question. It further noted that B.M. had, prior to the November broadcast, invited the applicant and A.K. to refrain from making any defamatory reference to his name or character and to produce any illegally obtained material in their possession. The Court found that the content of those broadcasts invited viewers to come to a predetermined conclusion about B.M.’s guilt in the match-fixing cases. At a time when the criminal investigation was ongoing, this entailed a risk of influencing the course of the proceedings. The Court therefore saw no reason to substitute its view for that of the national courts when, in balancing the right to freedom of expression with the right to respect for private life and the preservation of the authority and impartiality of the judiciary, they gave considerable weight to the illegality of the manner of dissemination and acquisition of the material in question.
e) On the infringement of B.M.’s right to respect for his private life
Taking into account the manner in which the applicant planned and executed his broadcasts, the ECtHR aligned itself with the domestic courts’ assessment that the boundaries of responsible journalism were exceeded in the present case.
f) Proportionality of the compensation awarded
Finally, the award of damages was made in the context of civil and not criminal proceedings. In assessing the amount of damages, the national courts expressly referred to specific facts, such as the broadcast of the programmes on a national television network, its wide audience, including sports professionals and fans, and the estimated damage to the claimant’s reputation.
(g) Conclusion
In the light of the above, the Court found that the reasoning of the national courts to justify the proportionality of the compensation awarded was sound and sufficient and the courts examined the essential elements of the case. The Court was satisfied that the domestic courts applied standards that were in accordance with the principles embodied in Article 10 ECHR and were based on an acceptable assessment of the relevant facts. It therefore saw no good reason for it to substitute its view for that of the domestic courts and to reverse the balancing exercise they had undertaken. Therefore, the interference with the exercise of the applicant’s right to freedom of expression could reasonably be regarded as “necessary in a democratic society” within the meaning of Article 10 § 2 and the respondent State’s authorities acted within their margin of appreciation in striking a fair balance between the competing interests at stake. The ECtHR therefore concluded that there had been no violation of Article 10 of the Convention (edited by echrcaselaw.com).
