Gesina-Torres v Poland: Amicus addresses journalists’ use of undercover investigative techniques

ARTICLE 19 has filed a third-party intervention in the case of Gesina-Torres v Poland (App. No. 11915/15), currently pending before the European Court of Human Rights.

The case concerns Polish journalist, Endy Gesina-Torres, who was commissioned by public service television to report on the living conditions in immigration detention centres. In order to gain access to a detention centre, he pretended to be an irregular migrant: he gave the police a fictitious name, claimed he had crossed the Polish border in an irregular manner and had no documents. As a result, Gesina-Torres was placed in a detention centre, where he spent three weeks making under-cover recordings with his mobile phone. After Gesina-Torres’ real identity was discovered, he was found guilty of various criminal offences; however, no restriction on publishing what he had recorded during his stay in the centre was imposed.

ARTICLE 19’s submission provides an overview on international and comparative standards that are relevant to the case, namely:

  • The right of journalists to seek and impart information on matters of public concern and the corresponding right of the public to receive information and ideas, including the widest possible diversity of viewpoints;
  • The importance of the use of undercover and immersion journalistic reporting in investigative journalism;
  • The balance between investigative journalism on matters of public concern and the impact on public trust in public institutions.

The submission concludes that media diversity can only be achieved when media outlets have at their disposal a variety of reporting and investigative techniques. They should be able to report on a given topic in the format of their choice and in conformity with established editorial guidelines and codes of conduct. Only in this way can the public have access to the widest possible range of viewpoints on matters of public concern.

When assessing whether an undercover reporting technique used by journalists can be restricted under the right to freedom of expression, the requirement of necessity and proportionality should include the following considerations:

  • Whether the use of the techniques in the investigation is done in the public interest, serving the public’s right to know on a matter of public concern. It should also ensure that the public’s right to be informed about irregularities, unlawful behaviour or possible violations of fundamental rights inside public institutions and to take part in public debates about public institutions prevails over the general interest in preserving the public’s trust in public institutions;
  • The extent to which the media outlet and journalist took measures to mitigate the impact on the rights of others when applying the techniques;
  • Whether the techniques were necessary to produce the specific report, including but not limited to such elements as the format of the report, access to direct testimonies, access to places and persons that are relevant in relation to the matter at hand, and immersion in a given environment in order to understand, analyse and report “from the inside”.

 

Read the submission in full

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