The European Court of Human Rights held that a court injunction that prohibits any publication of video footage in which a police officer was clearly recognisable during an arrest that turned violent, violated the news website “bild.de”’s right to freedom of expression. Notably, the Court accepted that the right to private life of the officer might justify the prohibition of a specific publication, but it does not accept that the consent of the officer prevails over the public interest in being informed of the use of force by the police for all future publications (Case no 9602/18).
• Background to the case
The case concerns an online publication by the German website “bild.de” of a video that showed a police arrest in a nightclub in Bremen in which one police officer was clearly recognisable as his face had not been blurred. In a first publication, a voice-over announces “[s]hocking footage from a security camera” in which a police officer can be seen beating a detained person. In a second video of the events, the detainee behaves aggressively before the arrival of the police.
The police officer consequently lodged a claim with the national court, which ordered to cease the publication of the footage. Although, according to that court, the images might portray an aspect of contemporary society, the protection of the officer’s personality rights were of overriding importance. On appeal, the ban was confirmed and it was held that the video was indeed unlawful as both a negative and a positive coverage of the events by “bild.de” would require either the consent of the officer or the pixelation of his face.
After exhaustion of national remedies, the news website turned to the European Court of Human Rights (“ECtHR”), claiming that the publication ban infringed its right to freedom of expression. The ECtHR examined if the domestic courts had undertaken the balancing of competing rights in conformity with the case-law concerning the necessity to interfere with the freedom of expression in a democratic society, as summarized in the NIT v. Moldova judgment.
• Police violence as a matter of general interest
As a preliminary point, the ECtHR stressed that audiovisual images, and a fortiori publications on the Internet, have a more immediate and powerful effect than print media. Therefore, in this case, a higher risk of harm to the right to respect for private life needs to be taken into account by domestic courts. In most cases, the right to control of one’s image involves the possibility to refuse publication.
Regarding the use of force by police officers, the ECtHR confirmed that police brutality is inherently a matter of public interest. Yet, this concerns the actions of the police as an institution and not of the police officer as an individual, who had not been alleged to have abused his powers. The ECtHR observed that no general rule under the Convention requires that police officers generally not be recognisable in press publications. Indeed, civil servants are subject to wider limits of acceptable criticism than ordinary citizens, but this does not deprive them of a legitimate interest in protecting their private life against being falsely portrayed as abusing their office.
• No journalistic freedom without responsibility
The domestic courts attached particular importance to the editorial presentation of the CCTV footage in the news articles. The accompanying commentary had the intention to amplify the impression of unnecessary use of force by the police and to portray the officer as a violent thug. The ECtHR, however, stressed that the scope of coverage and the reporting technique are a matter of journalistic freedom and that it is not for the courts to substitute their view for those of the press. This freedom, however, is not devoid of responsibilities as journalists must base their choices on ethical rules and codes of conduct.
On the whole, the ECtHR accepted that the reporting style and voice-over could be taken into consideration in the balancing of competing rights. The ECtHR found that the domestic court adequately balanced the competing rights of the police officer and “bild.de” when it decided that the prior consent of the police officer prevailed with regards to the publication ban of the first article.
• Can the national court prohibit all future publications?
Crucially, however, the ECtHR noted that the injunction also relates to any future publication of the unpixellated footage, regardless of the accompanying coverage. In this regard, the ECtHR did not accept the general reasoning according to which “bild.de” could never use this footage without the consent of the police officer. With regards to future publications, the ECtHR found that the appellate court failed to take into account that police violence is a matter of public interest and the potentially dissuasive effect of the obligation to blur images of it. All of which could lead to the prohibition to publish unedited images of police officers on duty.
Finally, the ECtHR noted that the publication ban did not constitute a particularly severe restriction because “bild.de” was not prohibited from reporting on the police intervention as such and could still publish the pixelated CCTV footage. Nevertheless, the ECtHR was of the opinion that in this case, the prohibition to publish the first article could not justify the ban on any future publication of the footage without the necessary balancing of competing interests.
For further information about this case and/or for general legal advice relating to media law and freedom of expression, please contact Karel Janssens.