Covert filming in Switzerland

Covert filming has become a common means in the German television landscape to expose abuses and bring them to public attention. In Switzerland, such action by four journalists led to a criminal conviction, whose lawfulness the European Court of Human Rights (ECtHR) had to address.

The reason for the conviction was a report by the Swiss broadcast "Kassensturz" from 2003. The report showed a conversation between a private insurance adviser and a customer filmed with a hidden camera. The insurance adviser's face was pixelated and his voice distorted. The purpose of the report was to expose inadequate advice in the insurance industry. The four journalists were fined by the Swiss Federal Court in 2008.

Decision of the Court

The European Court of Human Rights (ECtHR) (Judgment of 24.02.2015 – 21830/09 in French language) found in the criminal conviction a violation of the journalists' freedom of expression under Art. 10 ECHR. This resulted in a balancing of interests between the journalists' freedom of expression and the insurance adviser's right to respect for his private life under Art. 8 ECHR.

The subject of the report, the low quality of advice provided by private insurance advisers and the associated inadequate protection of consumer rights, was the subject of a highly relevant public debate. Furthermore, the report did not focus on the insurance adviser as a person but rather exposed specific business practices within a particular professional group. The right of the insurance adviser, who would have refused to make a statement after the situation was resolved, was, on the other hand, only minimally affected, as his face and voice were rendered unrecognizable and he was filmed outside his business premises, and the filming company had conducted careful research and acted in accordance with the provisions of the Swiss Press Council. The accuracy of the reporting had, moreover, never been disputed.

Furthermore, although the fine imposed by the Federal Court was relatively low, it was nevertheless capable of deterring media in the future from critical reporting even though in this case the applicants broadcast their documentary anyway.

Conclusion

In Germany, the right to personality is not affected, provided that the person is not recognizable. Nevertheless, this decision is also of great relevance for German media companies to the extent that they intend to produce film recordings in Switzerland, and has now also improved legal certainty there.