TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 90/11

15 of February of 2011

Headnotes:

The prohibition without any time limit on transmission by the media of the audio recording of a trial hearing contained in the court’s own magnetic carrier unless authorised by the judicial authority that is presiding over the phase in which the proceedings find themselves at the moment when the dissemination occurs, is not in breach of the Constitution, because it remains within the limits of the principle of proportionality.

Summary:

The appellant in this case was convicted of disregarding the prohibition on media transmissions of recordings of images or the sound of any judicial procedural act without the authorisation of the judicial authority that is presiding over the phase in which the proceedings find themselves at the moment of publication. She argued that when the norm was interpreted to entail a prohibition without any limit in time, it was unconstitutional because it violated the right to the freedom of the press, inasmuch as this restriction was disproportionate.

At issue was the transmission of an audio recording of judges asking questions and various witnesses testifying during a trial hearing. The appellant, who was a journalist working for a television station, was responsible for that transmission. The magnetic carrier containing the recording was the court’s own one, and the recording was broadcast to the public in a clear and understandable manner, inasmuch as all the interventions and testimony were subtitled.

The appellant argued that this dissemination, for which she did not seek judicial authorisation, fell within the scope of the media’s freedom to report the work of the justice system and formed part of the publicity which media entities are entitled to give to such matters.

The Constitutional Court emphasised that this case did not entail any impediment to the exercise of the freedom of the press with regard to the reporting of what took place at the trial hearing in the case in question. The Criminal Procedural Code norm whose constitutionality the appellant asked the Court to review only involves the transmission of the audio recording of hearings – i.e. a certain form of exercising the freedom of the press. Nor is it simply an outright prohibition on communicating in this way that which was said during the procedural act; the issue is rather one of subjecting the transmission to authorisation by the judge who is presiding over the trial phase of the proceedings. The challenged norm therefore does not represent the total sacrifice of the freedom of the press that is guaranteed by the Constitution.

The Court said that what was at stake was whether or not the conditioning factor represented by the norm respected the limits on the restrictions that can be imposed on constitutional rights, freedoms and guarantees – in this case, the limits that result from the principle of proportionality.

The norm in question is designed to protect the conditions needed for justice to be administered appropriately and for citizens’ rights, freedoms and guarantees to be safeguarded – conditions that can potentially conflict with the freedom of the press when exercised with regard to judicial practice. In the case of trial hearings, there are also some specific reasons for the norm, inasmuch as the process of recording sound and pictures is itself capable of influencing the way in which that procedural act unfurls, because it changes both the “atmosphere” in which the act is undertaken and the behaviour of the persons who intervene in the proceedings. It is true that when, as in the present case, the issue is solely one of a transmission that took place after the trial hearing and the handing down of the ensuing sentence, part of the reasons for limiting the publicising of what was said – those concerning the safeguarding of the conditions for justice to be administered in a good way – lose their weight. In these circumstances the use in a television news report of sound recorded during a trial hearing can no longer have an impact on the way in which the latter takes place, nor can it generate any “external noise” that might disturb the operation of the judicial apparatus in a serene climate that is favourable to a suitable functional performance on the part of the judicial decision-makers. The Constitutional Court recognised that knowledge, with the ensuing ability to monitor the way in which the jurisdictional authorities exercise the sovereign functions that are entrusted to them – those of “administering justice in the name of the people” – forms an essential part of a democratic state based on the rule of law; and that such knowledge cannot do without the indirect publicity that only media bodies can ensure, which is why they must fulfil the role of bringing the work of the courts into the public sphere.

However, the Constitutional Court was of the view that once the trial hearing has taken place and the sentence has been pronounced, there remain other reasons, which are centred on the protection of the fundamental rights of the persons who took part in the proceedings, and are also linked to the good administration of justice. Quite apart from anything else, there is the right to one’s words, which forms part of the universe of personal assets whose dignity is protected by the Constitution. The dimension of the content of this right which means that a third party must have one’s permission in order to record one’s words is prejudiced by the procedural-law provision that permits the recording of the statements made by every subject who intervenes in a trial hearing. The fact that there are restrictions on free self-determination with regard to the recording of one’s words itself justifies a special protection for the person who utters them, when it comes to any use of the recorded word over and above those provided for by law.

As such, and given that the audio recording ordered by the trial court was destined for a specific purpose, the Constitutional Court considered that it was justified that only those occasions on which the recording’s playback served to achieve that purpose and which remained within its original, planned function, should dispense authorisation of that playback by the owner of the voice in question. The Court said that this justification could not be transposed into contexts underlain by a very different communicational logic and intention, without first asking the holder of the right for his/her consent.

The Constitutional Court also held that on top of this aspect of the protection of the right to personal privacy, there is also the circumstance that limiting the functional use of the recording of the words which are spoken at a trial hearing to activities linked to the judicial proceedings themselves, helps to fulfil the public interest in the good administration of justice. At the same time, the normative solution before the Court does not entail the total sacrifice of the freedom to communicate that which has taken place at a trial hearing, and it is still possible to report what happened, the circumstances, and the content of the recorded statements. The only thing that is forbidden is the use of sound or pictures that were recorded or taken at the moment when the people in question were speaking, and the reason for this prohibition is that those words and images are the personal property of the authors of the statements – assets which those persons remain free to dispose of for all purposes except those that justified their recording or taking in the first place.

The Court thus concluded that the requirement for judicial authorisation for the media to broadcast this kind of audio recording makes sense, both for the purpose of protecting the right to one’s words, and in order to safeguard the legitimate purposes of the pursuit of justice that are achieved by recording what is said; and that that requirement is proportional where the protection of the various rights which are at stake is concerned.

Supplementary information:

The initial rapporteur dissented and was substituted. In his opinion, the requirement for a media body to have judicial authorisation before it can transmit the audio recording of a trial hearing, after the latter has taken place and the court has handed down its final decision, disproportionately injures journalists’ freedom of expression and creativity, which is one component of the guarantee of the freedom of the press and the media. In his view, once the case of which the hearing formed part has ended, the restrictions or conditions on the freedom to transmit the audio recording that was made during that hearing are only justified by the need to protect the right to one’s words, and not by any interests linked to the good administration of justice. Notwithstanding the fact that he agreed that the right to one’s words requires a particularly strong protection, the dissenting Justice felt that the context in which the words are spoken and the procedural purposes which require that they be recorded mean that the regime laid down in the challenged norm goes far beyond that which would be legitimated by that protective goal, to the extent that the norm gives the judge the power to deny authorisation to transmit, even when the persons who hold the right to the words in question do not themselves oppose it.

Cross-references:

See Ruling no. 605/2007 (11-12-2007).