EHRM, 16-04-2009, nr. 34438/04

As to whether the interference was necessary in a democratic society, the applicants did not contest that, generally, there would be weighty reasons for prohibiting the taking of photographs of defendants in criminal cases in court or on their way to or from the court. However, they argued that the reasons relied on by the Supreme Court in imposing the restrictions on the publication of the impugned photographs, although they were relevant, were not sufficient for the purposes of the necessity test to be carried out under Article 10 § 2 of the Convention.

The disputed pictures of B had been taken when she was arrested by the police, about half an hour after she had been convicted and sentenced in open court to the maximum statutory penalty for aiding and abetting triple murder. The delivery of the judgment had been broadcast live. Not only had there been a great public interest in the case as a whole but the arrest of B had marked a new development in the case of which the public had the right to be informed. The public interest had not laid in her identity, which had already been well known, but in the fact that she had been arrested and taken into police custody after being free for the last 18 months.

The applicants disputed the Government's argument to the effect that pictorial reporting on a subject of public interest could only be regarded as covered by that interest if it showed something special or unexpected. In any event, when assessing the degree of public interest in the pictures at issue, regard should also be had to the fact that B's own lawyer had been reported by the press to have stated that the arrest had been an unnecessary harassment by the police. Furthermore, the legitimacy of the arrest had been discussed in public by legal professionals, rendered by Dagbladet on 23 June 2001 and had definitely represented a turning point in the Orderud case.

The crucial question was not, as the Government claimed, whether the pictures had been of public interest, which they where, but whether there were sufficiently pressing needs to ban their publication. Neither the interests of B nor the interests of fair administration of justice required such a ban in the present case.

As to B's interests, the Government had attached decisive weight to the fact that she had not consented to being photographed. However, it was contrary to press freedom to grant persons who, like B, had played a central role in issues of great public interest the opportunity to govern press coverage of such issues through their own consent. It would imply that B could use her consent to get media coverage when it suited her case and at the same time restrict media coverage by withholding consent when circumstances were less favourable to her or if she disliked the particular media coverage. B had actually made active use of the press when it suited her interests.

In addition, as also noted by the District Court, the contents of the photographs could not be considered to have been particularly offensive or defamatory.

The applicants would not dispute that B, when she was leaving the court building, had been in a situation that fell within the prohibition in section 131A of the 1915 Act. However, the Supreme Court, which had dealt with the matter only in a general manner, had failed to assess any particular need relating to the particular photographs or to her specific circumstances. In the applicants' opinion these were not such that the interference with their freedom of expression could be justified by the interests of protecting B's privacy. The pictures had not been taken in court or immediately after the verdict or in the court building, but outside the court building half an hour after the verdict. There was no prohibition against taking photographs of an arrest, and it was exactly this latter circumstance that had motivated the taking and publishing of the pictures. In that sense, B had been outside the intended core protection area of section 131A.

In the applicant's view, none of the general justifications for the prohibition in section 131A of the 1915 Act had applied with any or much strength in this case. Firstly, B had since long been identified, wherefore protecting her against identification would have been futile. As to the second consideration — the need to protect the convicted person or the accused from being photographed in situations of reduced self control, the applicants stressed that B had left the court room when she understood that she was about to be convicted and had naturally reacted to the conviction. Before the pictures had been taken, she had spent more than half an-hour alone with her family and lawyers to gather herself. The Supreme Court had stated that the interests of protection of personal privacy had not been predominant. This was illustrated by the fact that none of the other persons convicted had complained about pictures having been taken of them and been published. Also the third consideration — to ensure that legal proceedings as far as possible inspire confidence in and show consideration for the persons involved — carried limited weight compared to the considerable public interest in the case generally and in the arrest of B specifically. To allow the taking and publishing of the pictures in the present case would not have undermined the prohibition in section 131A of 1915 Act. As to the fourth reason, the applicants stressed that the pictures had been taken in a parking area outside the court house and that it had been difficult therefore to see how they could have prejudiced the dignity and reputation of the judiciary.

The applicants emphasised that, contrary to what was suggested by the Supreme Court, none of the considerations relied on by the European Court in P4 Radio Hele Norge ASA, cited above, for allowing States a wide margin of appreciation applied in the present case. Whereas the disputed restriction in the former case had not involved the prohibition of publication of specific expressions, but only limitations of a more trivial nature on the freedom to report from the proceedings by the means of live radio broadcasting, the present case concerned criminal conviction of members of the press for publication of specific expressions, notably pictures that documented the arrest of B. Referring to the Court's judgment in News Verlags GmbH & Co.KG v. Austria, (no. 31457/96, ECHR 2000-I), the applicants argued that pictorial reporting should be judged by the same standards as written articles in the media.

Finally, the applicants submitted that the interference complained of had been disproportionate to the legitimate aim pursued. In their view, the Supreme Court had erroneously adopted an approach which was the inverse of the one implied by Article 10 of the Convention. According to the Supreme Court, the question had not been whether there existed weighty reasons to justify the interference but, the other way round, whether there had existed very special considerations warranting the prohibition in section 131A to yield to the freedom of expression as protected by Article 10. In finding that a photograph must show something special in order to fall within the protection of Article 10, the Supreme Court had failed to have due regard to the freedom of speech. The application of such a norm constituted a serious infringement of the freedom of the media to report on serious criminal court cases.

In short, the applicants submitted, the disputed interference with the applicants' right to freedom of expression was not offset by any weighty countervailing interests pertaining either to B's interest of privacy or to considerations of fair administration of justice.

On the question whether the interference was necessary in a democratic society the Government maintained that even though the Orderud case had been horrifying and the subject of enormous public interest, the photographs in question had been of limited public interest. B's identity had been well known to the public at the time when the photographs had been taken. The arrest of the four freshly convicted persons admittedly represented developments of public interest, as was also recognized by the Supreme Court. However, a crucial fact for the assessment of the present case was that the impugned photographs had not been primarily used to illustrate the arrest. Rather than contributing to any debate of public interest, the sole purpose had been to satisfy readers' curiosity about B's emotional reaction to her conviction, which showed nothing abnormal or unexpected. Thus the impugned reporting in the present case fell outside the function of the press to serve as a public watchdog.

While not contesting the Court's powers to make its own interpretation of the pictures in the context that they had been published, knowledge of national conditions was an important element in assessing the degree of public interest in a given subject. In the Government's opinion, the national Supreme Court was better placed than the Court to assess this matter.

The Government maintained that although B's previous co-operation with the press was a valid argument with regard to her general protection against being photographed, this consideration did not apply in the present case. The pictures had been taken shortly after she had been found guilty of having wilfully murdered three persons and sentenced to 21 years' imprisonment. B had throughout the proceedings claimed her innocence. Both the fact that she had been found guilty and that she had been imposed the maximum penalty according to Norwegian law were clearly life-altering decisions for her, resulting in shock and utmost despair.

It was, in the Governments view, undisputable that, despite her previous co-operation with the press, in this particular situation B was entitled to the same protection against being photographed as any other person who had been convicted. She was in a situation of reduced self-control, which was precisely the kind of situation in which the prohibition was designed to afford protection. Convicted persons had, even in serious criminal cases like the present one, a legitimate right to be protected from being photographed in situations of reduced self-control. Without such a prohibition undignified situations could easily arise in which accused and convicted persons would have to force their way past photographers waiting outside the court room or in the immediate premises. Like in Von Hannover v. Germany, (no. 59320/00, § 68, ECHR 2004-VI), an additional element was that the photographs had been taken without B's consent. The Government stressed that any person, including persons considered as public figures, had a legitimate interest in protection against being photographed in certain situations. This was certainly the case of convicted persons.

The Government, referring to the Court's ruling in P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003-VI, maintained that a wide margin of appreciation should apply in the instant case. The Supreme Court had furthermore presented relevant and sufficient reasons for accepting the interference.

The interference in this case had been of rather trivial nature in that it had only involved a restriction on the newspaper's choice as to the means of imparting information. B's reaction could have been appropriately described by words. The extent of the restriction had also been limited. According to Section 131A of the 1915 Act, the prohibition had included only the immediate vicinity of the court premises, i.e. normally up to the car parking area. Photographing beyond that point was not prohibited. Thus, the prohibition had entailed only a minor interference with the applicants' freedom of expression. Accordingly, even the arrest could be illustrated in another way, for example by photographing B at the police station or in prison.

The Government further pointed out that rules which limited the right of the press to cover court proceedings could be found in the national legal systems of several European States. Sweden and Denmark had corresponding rules to those that applied in Norway.

In light of the above and, in particular, due process considerations and the need to protect the person concerned in a situation of reduced self-control following her conviction, the interference with the applicants' freedom of expression was ‘necessary in a democratic society’ within the meaning of Article 10 § 2 of the Convention.

The test of ‘necessity in a democratic society’ requires the Court to determine whether the ‘interference’ complained of corresponded to a ‘pressing social need’, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a ‘need’ exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10.

An important factor for the Court's determination is the essential function of the press in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others or of the proper administration of justice, its duty is nevertheless to impart — in a manner consistent with its obligations and responsibilities — information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III). This duty extends to the reporting and commenting on court proceedings which, provided that they do not overstep the bounds set out above, contribute to their publicity and are thus consonant with the requirement under Article 6 § 1 of the Convention that hearings be public. Not only do the media have the task of imparting such information and ideas: the public has a right to receive them (see News Verlags GmbH & Co.KG v. Austria, no. 31457/96, §§ 55–56, ECHR 2000-I; Worm v. Austria, judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1551-2, § 50).

In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).

In this connection, the Court notes that in convicting and sentencing the applicants in this case, the Norwegian Supreme Court attached considerable weight to the European Court's decision in the above cited P4 Radio Hele Norge ASA v. Norway ((dec.), no. 76682/01, ECHR 2003-VI.), relating to the same case complex and in which it held inter alia:

That case dealt with an issue of prohibition, pursuant to the first sentence of section 131A(1) of the 1915 Act, to transmit the trial hearing before the Nes District Court live (by radio), thereby limiting the choice of the means available to the press in covering the proceedings. Also in this case there is a question of restriction on the choice of journalistic means, in that it concerns a prohibition, according to the second sentence of section 131A(1), to take photographs of one of the convicted persons outside the court building after the proceedings had come to a close. Although the situations were different, the Court notes that the two rules pursued the same interests, notably the need to avoid additional pressure being brought on those involved in the trial. The Court therefore considers that the rationale for according States a wide margin of appreciation in the former case is applicable to the present instance.

The subject matter at issue in this case relates, on the one hand, to the right of the press under Article 10 of the Convention to inform the public on matters of public concern regarding ongoing criminal proceedings and, on the other hand, to the State's positive obligations under Article 8 of the Convention to protect the privacy of convicted persons in criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above) and its obligations under Article 6 of the Convention to ensure a fair administration of justice.

It is to be noted that Norway is not in an isolated position with regard to prohibition to photograph charged or convicted persons in connection with court proceedings. According to information available to the Court, similar prohibitions exist in the domestic laws of Cyprus, England and Wales, and legal restrictions apply also in Austria and Denmark. Whilst in a number of countries such matters are left to self-regulation by the press, it cannot be said that there is a European consensus to this effect.

In light of the above considerations, the Court considers that the competent authorities in the respondent State should be accorded a wide margin of appreciation in their balancing of the conflicting interests.

The Court observes that the national legal provision contained in the second sentence of section 131A(1) of the 1915 Act, stipulated a prohibition against the taking of photographs of an accused or a convicted person, without his or her consent, on his or her way to or from the court hearing. According to the Supreme Court's case-law, the prohibition was not absolute but would be set aside in instances where the national court found that it would conflict with Article 10 of the Convention. The Court will therefore confine its examination to the manner in which the national courts applied the prohibition to the concrete circumstances of the case.

In this regard, the Court notes that the Supreme Court based its decision in part on considerations of protection of privacy and in part on the need to safeguard due process (see paragraphs 24 and 25 of the Supreme Court's judgment quoted at paragraph 18 above). In the Court's view, these were undoubtedly relevant reasons for the purposes of the necessity test to be carried out under Article 10 § 2. It will next consider whether they were also sufficient.

Largely because of the exceptionally heinous character of the criminal offences in respect of which B and her co-accused had been charged, the trial had been given unprecedented media coverage. It is undisputed before the Court that the passing of the judgment and the arrest immediately after conviction and sentence at first instance was a matter of public interest.

However, under the terms of Article 10 § 2, the exercise of the freedom of expression carries with it ‘duties and responsibilities’, which also apply to the press. In the present case this relates to protecting ‘the reputation or rights of others’ and ‘maintaining the authority and impartiality of the judiciary’. These duties and responsibilities are particularly important in relation to the dissemination to the wide public of photographs revealing personal and intimate information about an individual (see Von Hannover v. Germany, no. 59320/00, § 59, ECHR 2004-VI; Hachette Filipacchi Associés c. France, n^o 71111/01, § 42, 14 juin 2007). The same applies when this is done in connection with criminal proceedings (see Principle 8 in the Appendix to Recommendation Rec(2003)13 of the Committee of Ministers to member States on the provision of information trough media in relation to criminal proceedings, quoted at paragraph 21 above). The Court reiterates that the notion of private life in Article 8 of the Convention extends to a person's identity, such as a person's name or a person's picture (Von Hannover , cited above, § 50; see also Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002).

It is undisputed that at the time when the photos were taken B's identity was already well known to the public and that, accordingly, there was no need to restrict the disclosure of her identity. The Court must nevertheless examine whether the contents of the photos, seen in the context of their publication, was such that the restriction on publication was justified.

The Court notes that two of the impugned photographs, one taken from the side, the other from a more frontal angle, depicted B as she had left the court house accompanied by her lawyer and was being followed by a civil clothed police officer to an unmarked police car. The third photograph, taken through the window of the police car, depicted her seated in the back near the window. All three photographs portrayed her distraught with a handkerchief close to her face in a state of strong emotion. She had just been arrested inside the court house after being notified of the District Court's judgment convicting her of triple murder and imposing on her a 21 years' prison sentence, the most severe sentence contemplated under Norwegian law. It must be assumed that B, who was shown in tears and great distress, was emotionally shaken and at her most vulnerable psychologically. As observed by the Supreme Court, immediately in connection with the delivery of the District Court judgment she was in a state of reduced self control, a situation which lay at the core of the protection which the relevant statutory provision was intended to provide. Although the photographs had been taken in a public place (see, mutatis mutandis, Peck v. the United Kingdom, no. 44647/98, §§ 57–63, ECHR 2003-I) and in relation to a public event, the Court finds that their publication represented a particularly intrusive portrayal of B. She had not consented to the taking of the photographs or to their publication.

The Court is unable to agree with the applicants' argument that the absence of consent by B was irrelevant in view of her previous cooperation with the press. Her situation could not be assimilated to that of a person who voluntarily exposes himself or herself by virtue of his or her role as a politician (Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 42; News Verlags GmbH & Co.KG , cited above, § 56; Krone Verlag GmbH & Co. KG , cited above, §§ 35–39) or as a public figure (see Fressoz and Roire v. France [GC], no. 29183/95, § 50, ECHR 1999-I; Tønsbergs Blad A.S. and Haukom v. Norway, no. 510/04, § 87, ECHR 2007-…) or as a participant in a public debate on a matter of public interest (see, for instance, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 52, ECHR 1999-VIII; Oberschlick v. Austria (no. 2), judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, pp. 1275-76, §§ 31–35). Accordingly, the fact that B had cooperated with the press on previous occasions could not serve as an argument for depriving her of protection against the publication by the press of the photographs in question.

The Court therefore finds that the need to protect B's privacy was equally important as that of safeguarding due process. While the Supreme Court attached more weight to the latter (see paragraph 35 of its judgment quoted at paragraph 18 above), for the European Court the former is predominant. However, when considered in the aggregate, both reasons corresponded to a pressing social need and were sufficient. The interests in restricting publication of the photographs outweighed those of the press in informing the public on a matter of public concern.

Finally, the Court notes that the fines imposed were not particularly severe.

In sum, the Court finds that, by prohibiting the taking and publication of the photographs of B on the way from the court building to an awaiting police car, the respondent State acted within its margin of appreciation in assessing the need to protect her privacy and those of fair administration of justice. It is satisfied that the restriction on the applicant editors' right to freedom of expression resulting from the Supreme Court's judgment of 23 March 2003 was supported by reasons that were relevant and sufficient, and was proportionate to the legitimate aims pursed.

There has therefore been no violation of Article 10 of the Convention in the present case.