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23.01.2019

Top court rules against republication of photo showing Swiss journalist in detention 

By Emil Weber 

The European Court of Human Rights (ECtHR) has decided that the German domestic courts were right to sanction the republication of a famous Swiss journalist and presenter’s photograph showing him without his shirt in a detention centre.

Building of the European Court of Human Rights Building of the European Court of Human Rights (photo: CherryX)

The journalist was arrested and placed in pre-trial detention in March 2010 suspected of aggravated rape and dangerous assaults towards his former partner.

The photograph was published by the German daily newspaper Bild in June 2010. A few days later, the journalist was released from detention; and in the following year’s trial he was acquitted of all charges. 

The journalist lodged a successful application in December 2010 at the Cologne Regional Court requesting the prohibition of further publication of the photo without his consent and the reimbursement of the fees for his lawyers.

“[The Cologne Regional Court], considered that [the journalist] and his fellow prisoners were in the yard of a prison, that is to say, in a place of isolation excluding all public access and that, consequently, [the journalist] had no reason to expect to be photographed, as shown by the fact that he was shirtless”, the ECtHR decision published on 10 January 2019 reads. “The Regional Court further found that the informative value of the photograph in question was weak…”.

Protection of journalist's private sphere

The Cologne Court of Appeal later ruled that the fact that the journalist “had long been the subject of media reports did not deprive him of the protection of his private sphere when he was in isolated places”.

Companies Axel Springer AG, which owns the newspaper, and Bild GmbH & Co. KG which manages Bild’s online website, complained at the European Court of Human Rights in 2013 that the domestic decisions were in violation of article 10 of the European Convention, that is, their freedom of expression. 

The ECtHR has now however ruled that the German courts correctly balanced the companies’ rights to freedom of expression and the journalist’s right to private life. 

The top court agreed with the arguments [cited above] provided by the local courts.

It further said that the fact that the journalist was detained was known to the public and there was no reason to republish the photograph. 

The Court also considers that if the photo was not defamatory or derogatory to [the journalist’s] image, it nevertheless showed [the journalist] in a situation in which he had no reason to expect to be photographed”, the decision read.

ECtHR said that the sanction - which amounted to a ban of the photo and the reimbursement of lawyer’s fees - was unlikely to serve as a chilling effect on the press.

Bild GmbH & Co. KG and Axel Springer AG v. Germany, application nos. 62721/13 and 62741/13. 10 January 2019

 



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