Stopping spy tactics or killing the story?

The Constitutional Court has ruled that the use of hidden cameras is an abuse of privacy But have journalists been unnecessarily deprived of a useful tool for investigative reporting?

The Antena 3 show Al descubierto, in which the journalist Gema García Marcos (r) posed as a Miss Spain contestant.
The Antena 3 show Al descubierto, in which the journalist Gema García Marcos (r) posed as a Miss Spain contestant.

The use of hidden cameras on television has suffered a direct hit. This information-gathering method, which had been increasingly popular on all types of programs, from gossip shows to investigative reports, can no longer be legally used. In a recent decision, the Constitutional Court ruled that so-called "intrusive capturing" of images is "illegitimate" because it breaches a person's privacy rights, which come before freedom of information, the court argued

But while the country's foremost court has finally spoken on this longstanding source of controversy, the debate continues unabated.

Professionals are divided over the matter. Supporters of hidden cameras hold that they help obtain data and documents that would otherwise be very difficult to access. Detractors appeal to journalism ethics and claim that the method alters the information itself, especially if its targets are not allowed to express their own viewpoints once they have been captured on video without their knowledge or consent.

The colossal battle for audience ratings on television has often encouraged abuse. In recent years, many celebrities who regularly make the covers of gossip magazines have been caught off-guard in embarrassing situations by hidden cameras. These attacks on their private lives were often provoked or even directly fabricated.

But celebrities are not the only targets of hidden cameras. Sometimes at least, Spanish journalists use them to uncover cases of corruption, drug trafficking and organized crime.

Is there a difference between both types of information? Is the use of a hidden camera justified depending on the seriousness of the situation that is being exposed?

The "intrusive capturing" of images breaches a person's privacy rights

According to the Constitutional Court, the answer is a simple no. No distinction is made in its ruling. Regardless of whether the matter being investigated by the journalist could be said to be in the public interest and not merely of entertainment value, what is constitutionally forbidden is the use of the method itself, the court argues.

Specifically, the top court's decision puts an end to the years-long conflict between the Valencian regional television, Canal 9, in conjunction with the production company Canal Mundo Producciones Audiovisuales - linked to El Mundo newspaper - and a beautician who was filmed with a hidden camera at her private practice to illustrate a story about how non-professionals have infiltrated the health industry. The cosmetologist figured that her privacy and her good name had been violated, and brought a suit against the station. That view has now been confirmed by the Constitutional Court.

There are many other similar cases out there, and although none have reached such a high court, they have made a big splash in the media.

"With the advent of new technologies, social networking, the digitalization of communications processes and the policies that guide this technological development, there is a growing sense of living under surveillance. The privacy of communications is being constantly placed under threat," says Víctor Marí Sáez, a professor of broadcast communications and advertising at Cádiz University.

"Without a hidden camera, we couldn't prove 80 percent of what we expose"

A decade or so ago, hidden cameras, while very popular in countries like the UK, were hardly used in Spain, except for very specific cases of investigative reporting. But in recent times, TV schedules have filled up with programs based on just this sort of technique. In one case, a female journalist passed herself off as a contender for the Miss Spain prize in order to prove that the title could be bought for the right price; another show tried to prove that weight-loss centers could be harmful for clients; a third uncovered the continuous abuse of elderly people at a senior residence. Is the use of a hidden camera justified in these cases? And what if it's a politician that is being investigated?

Marí Sáez mentions the case of a photograph someone took of Socialist leader Alfredo Pérez Rubalcaba's cellphone as he was checking an SMS that could be clearly read. The scholar wonders what the limits of privacy are when the target is a politician and the space is public (Congress, in this case).

In 2008, the news outlet Intereconomía caught several officials at the provincial authority of Almería talking and laughing about their jobs. In a conversation that was recorded with a hidden camera, they were heard saying that they did "practically nothing" all day. They were fired right after the recording was aired.

Mercedes Milá, a veteran broadcast journalist at Cuatro network who hosts Diario D..., a program based on catching lawbreakers with hidden cameras, believes that in some cases their use is justified and can even be very useful.

"The right to public communication must not always come first"

"If we didn't have the hidden camera, we couldn't prove 80 percent of the wrongdoing we are reporting on," she says, citing examples such as the stories about the unlawful behavior of a local police chief who was subsequently suspended, or the owner of a call center who laundered money on the side, and was arrested for it. That is why Milá believes that the Constitutional Court's decision is "a glaring mistake."

Lucrecio Rebollo, a professor of constitutional law at UNED, Spain's correspondence university, disagrees and thinks the decision is a wise one. Rebollo highlights two important issues, the first of which is consent.

"Just like with data protection, if there is no consent, you cannot use someone's image or voice," he says. The other issue is that the information is gathered by surreptitious means - in other words, by deceit.

In the case that triggered the historic Constitutional Court ruling, a journalist passed herself off as a patient and saw the beautician at her private practice, which was considered by the court to be part of her private sphere.

The journalist with a camera must be aware that he is not the county sherriff"

But there are times when journalists go much further, and set out on a veritable news hunt. These stories are, in fact, provoked. It happened in 2009 when reporters for British newspaper The Sunday Times posed as lobbyists for a fictitious Asian businessman who wanted to invest in London; these phony intermediaries met with several British Lords and offered them money to influence the drafting of laws that would be beneficial to their patron.

Several politicians fell for the trick, and then remembered that inducing people to commit a crime is considered a crime in itself.

"In the same way that we request that the police and judges be respectful of the rights of individuals, so can we demand the same of news professionals. The right to public communication must not always come first," says Rebollo. "The journalist with a hidden camera must be aware that he is not the county sheriff."

Undercover recording teams have been used on some investigative reporting for the popular gossip show El programa de Ana Rosa, which airs on Telecinco. A spokesperson at her production company, Cuarzo, said that the recordings always follow two premises: "We always had tacit consent from the people concerned, and [the recordings] were always carried out in public places."

No tool should be criminalized. What matters is the way in which it is used"

This last point is important, as the court's decision underscores the fact that the recording was done in the plaintiff's private sphere. According to some experts, this leaves the door open for hidden cameras to still be used on public figures in public areas.

So is this the end of hidden camera reporting? Rebollo thinks it is when it comes to catching individuals in their own personal space. "But the Constitutional Court's jurisprudence does not condition future jurisprudence. This ruling is definite, but it would be desirable in future to have another one establishing the limits," he says, citing cases of public health, for instance, in which freedom of information could prevail over other rights.

This scholar explains that in order to make that call between fundamental freedoms, several factors must be taken into account: the context and the location of what is being recorded, and whether the target has any public relevance or not. These considerations can tip the balance on either the side of personal rights or that of freedom of information.

Journalists see things differently, however. Manuel Núñez Encabo, president of the Complaints and Deontology Committee at the Federation of Journalist Associations (FAPE), believes the leading court's decision is "incomplete" and that it should not establish jurisprudence. Núñez Encabo, who is also a professor of law at Complutense University, says the court stopped at the threshold of the plaintiff's personal privacy rights, and did not weigh the public interest factor of the topic that was being investigated.

The BBC and the New York Times accept the use of hidden cameras in similar circumstances

"It did not weigh her rights against those of the journalists to inform or those of the citizens to receive accurate information of public interest," he says. Núñez Encabo proposes a wholesale re-examination of the complexities of journalism in the information society.

Malen Aznárez, president of Reporters Without Borders in Spain, says that "such a broad, generic ruling can seriously harm freedom of information and investigative journalism that cannot be carried out in the open, camera in hand."

Yet Aznárez is also aware that freedom of the press cannot be used as a weapon to commit "all sorts of outrages."

FAPE's president, Elsa González, holds that the Constitutional Court has delivered a massive blow to investigative reporting. "Journalists must seek the story behind the story; they have to dig deeper than what is being offered to them," she says. Yet she also admits that there has been some degree of abuse in the use of hidden cameras, a method that has become excessively common in recent times. A large proportion of TV reports appeals to the prurient interest of viewers, with journalists regularly investigating illicit massage parlors and the like.

"But without hidden cameras, some stories about drug cartels or people traffickers that later led to charges being pressed could not have been made," she adds.

Pepa Bueno, who heads the newscast Telediario 2 on TVE, also admits to the use of hidden cameras in certain cases. "There are parts of the world where practicing journalism is next to impossible, and these methods make it possible to unveil cases of torture or crime. No working tool should be criminalized. What should be taken into account is the way in which it is used," she notes.

The problem is, who or what limits that use? At the public broadcaster RTVE, the use of hidden cameras or microphones to secretly capture a person's behavior is only justified in very special cases. "Like when you are trying to prove the existence of unlawful or criminal behavior that affects the public interest," says a spokesperson. These instruments are "the last resource to prove an accusation or a claim that has real public interest."

Even then, this type of recording can only be carried out after it has been approved by RTVE management, and can only be broadcast after the individuals concerned provide express authorization if they are going to be recognizable. Without their consent, their faces will be pixelated out so they cannot be identified.

Leading news organizations in other countries, such as the BBC and The New York Times, accept the use of hidden cameras in similar circumstances. Neither outlet permits undercover recordings just to catch a good news story. Their use is only approved for public interest stories that could not be covered in other ways.

Investigative journalism is not just about hidden cameras. But turning them off completely may deprive citizens of public interest testimony by people who do their best to flee the inquisitive eye of the press.

Ruling over the gutter

Marc Carrillo

The Constitutional Court has ruled on a specific case of illegitimate violation of a person's privacy rights, in a physical space comprising her professional office. Privacy protection does not mean simply one's place of residence. A professional needs to have reasonable expectations that what is said inside the office will not be disseminated in public without prior consent. And the fact that this office is open to patients does not make it a public stage.

The ruling is positive in that it protects these personal rights in the private sphere against the abusive use of new broadcast technologies. It puts the brakes on the bad practices of a few yellow television networks.

Of course, this specific case does not rule out the possibility of illegal actions committed in the private sphere being prosecuted by the state, with all legal constitutional guarantees such as court-condoned wiretaps.

In the private sphere, the journalist should not take the place of police and judges, and in this particular case there were surely other less intrusive ways of obtaining relevant information. On the other hand, the facts of this case cannot be applied to other situations, such as the use of cameras in the public sphere to reveal public interest cases, and therefore newsworthy cases.

The ruling that rejects the appeal by Canal Mundo and Valencia's Canal 9 safeguards an individual's right to prevent third parties from illegitimate violation of his or her private practice through deceitful means and without consent. The unlawfulness of the action is based on the fact that, through the surreptitious use of the hidden camera, the journalist was interfering in a disproportionate way in the individual's private sphere, not just by disseminating information that was spuriously obtained, but also by disseminating her image.

The journalist cannot make unlimited decisions regarding the technical means that may be used to obtain information. And investigative reporting is a more serious matter than the gratuitous use of hidden cameras.

Against the argument that it was a general interest story, the court rightly argues that even if that were so, the way in which the information was obtained and recorded, with patent deceit and technological trickery, constitutes an illegitimate interference in a person's privacy.

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