What does the conviction of journalists for filming politicians' private chats mean for freedom of the press?

The correctional court in Leuven on 22 April 2025, found two Spanish journalists guilty of violating the privacy of Catalan politicians Carles Puigdemont and Toni Comín. The court ruled that the filming their private messages, despite its political relevance, constituted an unacceptable violation of the right to privacy. This ruling emphasizes that freedom of the press is not absolute and must respect criminal law when gathering information.

The facts: surreptitious recording during a political event

On 30 January 2018, Spanish journalists Luis Navarro Montoro and Fernando Hernández Remos attended a political rally in Leuven. They were right behind Toni Comín and secretly filmed messages on his smartphone from Carles Puigdemont. The content of these messages, in which Puigdemont expressed doubts about his political role, was extremely sensitive and was distributed the next day through a popular Spanish current affairs program. This led to significant political and personal damage for both politicians.

The decision: privacy outweighs press freedom

The journalists were prosecuted for unlawful interception, perusal and recording of non-public communications, as stipulated in article 314bis, §1, 1° of the Criminal Code. The defense argued that Comín acted negligently, which could be seen as implied consent, and that the publication was in the public interest. They also challenged the jurisdiction of the correctional court, claiming it was a printing press crime.

The court rejected all these arguments:

• No printing press crime: Because the prosecution was dealing with the way on which the information was obtained (the filming), and not on its dissemination, there was no printing press crime.
• No implied consent: The court noted that the journalists had to act surreptitiously to make the recording and that even in the case of carelessness on the part of the victim, no implied consent can be inferred from this to learn about private communications.
• Privacy versus press freedom: The court ruled that the infringement of the right to privacy outweighed the right to freedom of expression and freedom of the press. The journalists had deliberately used technical means to obtain private communications. The fact that the politicians were public figures did not justify this far-reaching intrusion.

The judge issued a simple verdict of guilt, in part because of the substantial excess of reasonable time in the criminal case. In addition, the court awarded €3,500 in moral damages to each politician, and €1,412.79 in punitive damages, recognizing that the publication resulted in significant moral damages and even hate messages against Comín.

Legal analysis and interpretation

This ruling by the Leuven correctional court illustrates the delicate balance between two fundamental rights: the freedom of speech and press freedom (Article 10 ECHR) and the right to privacy (Article 8 ECHR). The ruling is in line with the case law of the European Court of Human Rights (ECtHR), which holds that journalists must in principle respect criminal law when gathering information. Moreover, the Court of Cassation ruled in a judgment of 28 April 2021 that freedom of the press is not an absolute right and convicted a journalist for eavesdropping on a private conversation.

At the heart of the court's reasoning is the ratio decidendi: how the information was obtained. The ruling emphasizes that even if information is of public interest, the means of obtaining it must be legal. The illegal obtaining of the information through article 314bis of the Criminal Code is an independent criminal offense, independent of the possible criminality of dissemination. The court ruled that the infringement of the right to privacy weighed more heavily, emphasizing the cunning and deliberate manner in which the journalists acted. This contrasts with cases where the ECtHR allowed freedom of the press to prevail, such as in the case of Fressoz and Roire t. France, where the disclosure of salary data of a company executive directly contributed to the public debate on wage policy. In contrast, the Leuven verdict rejects the unauthorized method of gathering, regardless of the importance of the content.

What this specifically means

• For journalists and the press: This ruling is a clear reminder that the right to freedom of the press has limits. Gathering information should not be at the expense of fundamental rights such as privacy. Journalists must be aware of the criminality of methods that violate privacy, such as secret filming, eavesdropping or hacking (as in the case of Shield & Friends), even if the information is of great public interest. The verdict emphasizes that the unlawful act of seizure in itself is sufficient for conviction.
• For public figures: The ruling confirms that politicians and other public figures also have a right to privacy. Their public office does not override this right. Private communications remain protected even if the content is politically relevant. This provides them with a legal basis to defend themselves against unlawful invasions of their privacy.
• For society: The verdict protects the right to privacy of everyone, including influential people, and puts limits on potentially far-reaching journalistic methods. The ruling shows an important balancing act in a democratic society, where the press plays a crucial role but cannot operate without limits.

FAQ (Frequently Asked Questions)

1. Is the freedom of the press not protected in Belgium anymore?
Freedom of the press remains a cornerstone of our rule of law. However, this ruling states that freedom of the press is not absolute and must respect criminal law. It is a balancing of interests where, in this particular case, the right to privacy outweighed the unlawful manner in which the information was obtained.

2. What is the difference between a press crime and an ordinary crime, as in this case?
A press crime refers to offenses committed by disseminating information through the press (e.g., libel, slander, incitement to hatred). The prosecution and trial of a press crime is the jurisdiction of the Assize Court and not the correctional court. In this case, the prosecution was not about dissemination, but about the unlawful manner on which the information was obtained. Thus, the perpetrator was prosecuted for the act of filming and not for publishing. Therefore, the correctional court did have jurisdiction.

3. Why was the court's compensation in the Catalan politicians' case criticized?
Some commentators criticized the court's inclusion of political reputational damage in determining damages. They argued that the court would have been better off limiting itself to the mere invasion of privacy without including the political consequences.

Conclusion

This ruling confirms the importance of privacy, even in the public realm of politics. It reminds journalists of their responsibility to act ethically and within the limits of the law when gathering information. The balance between freedom of the press and the protection of privacy is a constant challenge, and this ruling shows that Belgian jurisprudence closely monitors this balance.