The Supreme Court said no to the use of sound recordings in a documentary series

by Halvor Manshaus


Futuristic staircase
In a recently pronounced ruling (HR-2022-2106-A, 2 November 2022), the Supreme Court of Norway has ruled on the issue of the use of audio recordings from a completed and closed criminal case. The production company Indie Film AS wanted to the use recordings in a documentary series shown on TV2. The series in question has the title "Direktøren" (The Director) and is about a man who holds that he was wrongly convicted in a criminal case before the Borgarting Court of Appeal in 2016. The ruling was pronounced under a strong dissent (3-2). The author of this article (Halvor Manshaus) represented the third-party intervener, the Association of Norwegian Editors (Norsk Redaktørforening).

The audio recording in question came from a private person who had made a covert recording during the main hearing in the criminal case before the Court of Appeal. Indie Film only gained access to the recording at a later point as part of investigations in relation to the documentary. Hence, the recording was not made by the documentary team, but by a private and independent third party. This distinction is important, as Section 131a of the Norwegian Courts of Justice Act prohibits recordings made by the media for subsequent publication, while the same prohibition does not apply to private recordings:

'During the hearing of criminal cases, photography, filming and recording for radio or television is prohibited.'

Indie Film could not have made sound recordings for use in the documentary, and Indie Film was also not present in court during the main hearing. The decisive issue therefore became whether Indie Film could use the private recording, as this was not explicitly covered under the wording of the prohibition.

A request was made from Indie Film to the Court of Appeal, which had heard the criminal case. It was indicated that Indie Film wanted to use a recording of the defence counsel's statement, as well as the convicted person's own statement. Both of these persons had consented to the use in question. The aggrieved person, on the other hand, lived abroad, and it had not been possible to contact her. The counsel for the aggrieved party pointed out that there was therefore no basis for either accepting or opposing the use in question, but at the same time stated that he considered the use of the audio recordings to be "problematic".

The Court of Appeal refused the request for use of the audio recordings. It was pointed out that Section 131a of the Courts of Justice Act does not prohibit private recordings, so that these do not need the court's permission. The Court of Appeal nevertheless assumed that the provision implied that the publication of such recordings is in principle prohibited and therefore requires explicit consent from the court. After a thorough assessment, the Court of Appeal concluded that permission should not be granted for use of the audio recordings in the documentary.

Indie Film appealed the decision to the Supreme Court. As there was no real counterparty in the case, the Office of the Attorney General was asked to argue the case for the Norwegian State as a constructed counterparty. This was done to ensure contradiction in the case. Norsk Redaktørforening appeared as third-party intervener for Indie Film. In cases heard in accordance with the Norwegian Criminal Procedure Act, there is an opening for analogous application of the Norwegian Dispute Act, Section 15-7, as appears from, inter alia, Rt-2010-1150. The convicted person in the case before the Court of Appeal also made a statement before the Supreme Court through his defence counsel.

A particular feature of the case's development is worth noting. The audio recordings in question were wanted for use in the documentary series which was under production. Despite the fact that the Supreme Court scheduled the case quickly, the production company had to use actors to read the relevant extracts from the audio recordings in order to meet the premiere date that had already been fixed by the TV channel. In other words, when the case was tried before the Supreme Court, the relevant episode of the documentary series had already been shown on TV2, but with voices from actors who reproduced the content of the recordings from the convicted person and the defence counsel. It was agreed that such a verbatim reproduction of the content of the recordings was not contrary to the prohibition against publication of press recordings in Section 131a of the Courts of Justice Act.

Questions could also be raised as to whether Section 131a of the Courts of Justice Act covers the actual recording that was made by the private person in the present case, as this recording was eventually made available to Indie Film. The ruling gives clear instructions in Section 42 that such a private recording is not affected, even if questions may arise later about making the content public. This only means that the act of recording itself was not to be considered unlawful. The Supreme Court then goes on to consider whether the specific recordings could be used in the documentary:

'In a decision from the Appeals Committee in Rt-2012-380, paragraph 15, it is assumed that Section 131a of the Courts of Justice Act does not affect the act of recording itself when, at the time of recording, there was no intention of using the recording on radio or TV. However, the question now is whether Section 131a must be understood so that permission is still required to use audio recordings from court hearings if it later becomes relevant to use them "for radio or television.'

The Supreme Court's discussion of Section 131a is based on the general principle of disclosure in the administration of justice, see Section 95, first paragraph of the Norwegian Constitution and the European Convention on Human Rights (ECHR), Article 6, No. 1. This has resulted in several special provisions, such as Section 124 of the Courts of Justice Act, which the Supreme Court also mentions in paragraph 25:

'The principle of public court proceedings ensures the constitutional state by making it possible for the public to exercise control over whether things are done correctly in the individual case. More generally, the principle contributes to strengthening the constitutional state as well as freedom of expression and democracy by facilitating a public debate about the judicial system and legislation. Thus, a consequence of the principle is also the right to publicly reproduce court proceedings and court decisions, see Section 124, first paragraph of the Courts of Justice Act.'

From this general starting point, it is then pointed out that exceptions have been made to the principle of disclosure in the administration of justice, inter alia with reference to the right to privacy and privacy considerations. Section 28 then points out that different forms of reproduction from court proceedings can have different effects or experiences on the part of the recipient.

'The traditional form of reproduction has been a court record after the court hearing itself. The use of audio and video recordings from the court hearing tends to have a stronger effect – as Indie Film mentions in its application to the Court of Appeal. The use of such recordings can therefore more easily than other forms of communication come into conflict with privacy concerns and other legitimate considerations'.

This is a difficult area in the application of rules on freedom of expression and disclosure. To what extent should the courts emphasise the form of communication in a hypothetical assessment of something that has not yet been made public? In several decisions from the European Court of Human Rights (ECtHR), emphasis has been placed on the fact that the media have a wide margin of discretion when choosing the form of publication, see the Jersild case (case 15890/89, paragraph 31):

'At the same time, the methods of objective and balanced reporting may vary considerably, depending among other things on the media in question. It is not for this Court, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. In this context the Court recalls that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria 23 May 1991, Series A no. 204, p. 25, para. 57).'

This is partly due to the court's retrospective role, which takes on special importance in the area of freedom of expression. Should the court emphasise the form of the statement before the statement has taken place? Or should the court await the course of events before intervening? The ECHR is generally sceptical of placing decisive weight exclusively on the form of the expression, where the expression is presented by the media. The intention is probably to draw a line between editorial assessments and the courts' overall assessment of the statement made in the relevant context. Another factor lies in the public initially having open access to attend and hear directly what is said in court. This means that the publication of audio recordings will not in itself result in the public gaining access to something that, in principle, the public does not already have access to according to the rules on public court proceedings. There are thus several different considerations that enter into what must be an overall assessment based on the specific case at hand.

In the ruling, the Supreme Court finds that Section 131a of the Courts of Justice Act must be understood to mean that permission is also required for the use of such recordings that are not made by the press themselves. In other words, Indie Film acted correctly in submitting the issue to the Court of Appeal. In paragraphs 44-55, the Supreme Court refers to several points related to privacy considerations, as well as the need for the hearings in criminal cases not to be affected by recordings being made. It was concluded that, taken together, these considerations suggest that permission is required for subsequent publication even for purely private recordings.

In the assessment of whether Indie Film should be permitted to use the recordings in this particular case, the first-voting judge initially referred to the previous discussion related to whether the court's permission was required at all. Furthermore, the need to protect other parties in the case against the burden of having the recordings played back was pointed out, and also that direct recordings will have a stronger effect than other forms of reproduction. In this regard, reference is made by the court to the special circumstances of the underlying criminal case, which was of a serious nature.

In other words, an overall assessment is made where the first-voting judge concludes that there were insufficient reasons to deviate from the wording of Section 131 of the Courts of Justice Act, which requires "special reasons" to allow publication.

The second-voting judge had a different approach to the discussion of the issue of permission, and discusses in paragraph 90 the requirement for "special reasons" that appears in Section 131. Here, a more open approach was taken, based on Article 10 of the ECHR (freedom of expression):

'Even if, according to the wording of the Act, it is permission, and not refusal, that requires "special reasons", I believe that this condition in this case must be practiced relatively liberally in order to best take care of the weighty considerations of which Article 10 of the ECHR is a result. I refer here to the first-voting judge's account of these. As I understand it, such an interpretation would also be in accordance with the existing case law.'

With such an understanding of the Act's topic of assessment, the subsequent discussion of the actual question of permission was also assessed more openly, with greater emphasis placed on the consent from the persons to whom use of the recordings was relevant.

An important input from the second-voting judge is linked to a point mentioned above, the significance of the form of the statement. In paragraph 94, a line of principle is drawn up in the distribution of roles between the media and the courts:

'What is decisive for me in this case is that the courts should be careful in reviewing the professional assessments of the press. As I understand the Court of Appeal's reasoning in the case, the court here approaches the editorial assessment that the press itself must make. It is the press's task to ensure a balanced presentation, to safeguard any right of reply, etc., which Indie Film has also explained in its application. Although I also understand that the aggrieved person and her spouse will be able to perceive the documentary as incriminating, I believe that the requirements for granting permission under Section 131a, second paragraph of the Courts of Justice Act have been fulfilled.'

The majority concluded in line with the first-voting judge, meaning the outcome of the case was that the appeal from Indie Film was rejected.

The starting point according to this decision will thus be that any publication of private recordings from criminal cases requires the consent of the court. The manner in which the premises are formulated, will have significance not only for publication by the press but may also be relevant for other forms of publication.

When the court has to make the specific assessment according to Section 131a of the Courts of Justice Act, it will be necessary to make an overall assessment based on the general principle of public court proceedings, but where attention is also paid to the points highlighted in the ruling, including the need for privacy and the consideration that the proceedings themselves are not adversely affected by the fact that a recording is made for subsequent publication.

It is worth mentioning that the Norwegian National Courts Administration has undertaken a trial project with audio recordings made at selected courts. To start with, this has been done at Nord-Troms District Court and Hålogaland Court of Appeal, later Jæren District Court and Gulating Court of Appeal were also included in the project. The intention has been that audio recordings should be implemented at all courts within a couple of years, but the budget for this project has not been implemented. At the time of writing this article, no budget has been prepared that would make it possible to implement this new system any time soon. It is important to point out that such recordings will in any event not be generally available to the public, and that these regulations are structured around a strong degree of confidentiality relating to the recordings themselves. Such audio recordings are intended to partially replace statements given in the first instance where there is disagreement about specific evidentiary issues, and for example when assessing whether an appeal should be allowed.

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