Over the last decades the use of hidden cameras has rapidly become a cornerstone of the so-called “watchdog journalism” in which the need to inform on issues affecting the public interest is mixed, and sometimes overwhelmed, by the entertainment value of finding “scoops” at any price. This practice, not rarely, is followed by a string of lawsuits brought by the protagonists of the hidden cameras footage, alleging privacy intrusions and violation of their image rights. In these controversies the freedom of the press is traditionally employed by media houses and journalists as pivotal legal defence, owing to the sacred mission of the press to denunciate the wrongdoings of the society. However, it remains a thorny question establishing the threshold above which the use of hidden cameras does not represent investigative journalism, but rather pure (and illegal) voyeurism.
Recently, the European Court of Human Rights has taken position on the use of hidden cameras in investigative journalism. In Haldimann and Others v. Switzerland, with the decision no. 21830/09 dated 24 February 2015, the Court held in fact that Switzerland violated the freedom of expression as guaranteed by article 10 of the ECHR by convicting and fining four Swiss journalists that filmed secretly insurance brokers. Remarkably, the infringement of the individual brokers’ image rights was deemed justified on the consideration that such rights were outweighed by the public interest in receiving information on the malpractices within the insurance industry. However, it is important to note that in that case the journalists disguised the face and voice of the insurance brokers in accordance with good faith and the ethics of professional journalism.
Following this groundbreaking precedent, also the Italian Court of Cassation ruled in two cases involving the use of hidden cameras with the decisions no.15360 dated 22 July 2015 and no.17211 dated 27 August 2015. Albeit the Italian media complained for the alleging chilling effect of discouraging the use of this method for their reportages, in truth the Supreme Court focused exclusively on the image right of the people portrayed in the corresponding TV footages.
Article 10 of the Italian Civil Code and article 96 of the copyright law n. 633/1941 acknowledge protection to the image (actually termed as “portrait” in the copyright law) of individuals having the aim to protect their integrity and inviolability. Taken together, such provisions state that the reproduction, exposition and commercialisation of one person’s image is illegal without his or her consent and in any case if the image is used to the detriment of one person’s reputation or honour. By way of partial derogation of this principle, article 97 of the copyright law n. 633/1941 states that the unauthorised reproduction of one person’s image is justified “by notoriety or public office commitments, justice or police needs, or scientific, educational or cultural purposes or whereas reproduction is associated with facts, events, ceremonies of public interest”. The second comma of the same article however clarifies that the use of person’s image remains prohibited whereas it damages the reputation or honour of the portrayed individuals.
The aforementioned legal framework has been recalled by the Italian Court of Cassation in both the above mentioned decisions. Interestingly, in the lawsuits the defendant is the same Italian leading private broadcaster that was brought to the court as the editor of the two most popular journalistic/satyrical TV programs in Italy – the first of which is significantly known as the “Voice of Intrusion”.
In the first case, the controversy arose since a reporter of the “Voice of intrusion”, presenting himself as a customer of a job agency, used hidden cameras to denunciate the deceptive misconduct of its manager in reporting fake job opportunities. Unsurprisingly, since his image was not obscured during the Tv program, the person portrayed in the footage video sued the Tv broadcaster claiming compensation for the damages consequential to the violation of his image rights. Reversing the decision taken in the first grade, the Court of Appeal of Milan allowed the appeal of the TV broadcaster stating that the public interest to know the story narrated in the Tv report covered also the identity and image of its protagonists. The Italian Supreme Court disagreed with this interpretation of the exception under article 97 of the Copyright Law and stated the following innovative guideline: “The mere fact that the image of a person is related to a story that justifies an interest in being known by the public, cannot be deemed sufficient to legitimize its reproduction and dissemination.To this end it is necessary that such dissemination is essential for the completeness and correctness of the information provided“. In accordance with this principle, the Supreme Court reverted the decision of the Court of Appeal of Milan, since the scope of the exception under article 97 was considered too broad. In fact, the issue dealt with the Tv report – the abuses to which the persons are exposed in searching a job – was deemed too general to imply the disclosure of the manager’s image also considering the high level of offence that the TV device could eventually produce.
On the same line of reasoning, with the decision no.17211/2015 filed on 27 August 27 2015, the Italian Court of Cassation sentenced the same TV broadcaster to award compensation due the violation of image rights committed by another popular “infotainment” TV program. Here the victim is a woman captured by hidden cameras of a TV report focusing on the phenomenon of female sex tourism in Jamaica. The judges of the Supreme Court did not question, of course, the freedom of the press and therefore the choice to dedicate a TV report to inform on the sex tourism phenomenon, assessed as a matter of public interest. In their view, however, the image of the woman – clearly recognisable in the TV report – was not a part of the news, since the TV report was aimed at informing about a general social phenomenon. The dissemination of the woman’s image was deemed therefore abusive because it was made without her consent and the public interest exception under article 97 second paragraph did not apply. Furthermore, the Supreme Court reiterated the finding of the Court of Appeal, according to which the TV report damaged the reputation of the woman, portraying her as devoted to transgressive, casual sexual relationships. Therefore, the exception to the protection of image rights could not be applied, as the exercise of the freedom of the expression, taking into account the specific facts of the case, did not require that the woman’s image be openly disseminated.
In conclusion, the technique to conduct interviews with the use of hidden cameras for evidencing a story of public interest certainty results covered by the freedom of expression. However, journalists may use undisclosed or undercover recordings only to the extent that this does not exceed what is strictly necessary and proportionate vis-à-vis the competing image and privacy rights of individuals. Watchdog journalism therefore cannot bark without any limit. That being said, it remains still uncertain the exact scope of the exception under article 97, if we consider the principle expressed by the Italian Court of Cassation does not clarify the criteria to deem the dissemination of one person’s image essential to the information provided. This is a very problematic issue that is dramatically boosted nowadays: through apps like “Periscope” public citizens, becoming themselves journalists, broadcast live events of public interest allowing the dissemination of the image of thousands (and thousands) of people. But, legitimately or not?