Case Summary and Outcome

The Sixth Chamber of the French Council of State unanimously rejected a revocation request of a Decree allowing the withholding of the names of the persons involved in a judicial proceeding, as well as the names of the judges and of any other information that would allow them to be identified, on the grounds that such measures are in accordance with the right to freedom of expression and its limitations. The request was filed on August 31, 2020, by Fiatlux, a company specialized in the professional publication of law journals, and Mr. Stéphan Bonifassi, a French lawyer. The petitioners claimed that Decree No. 2020-797 (the Decree), adopted on June 29, 2020, on making judicial and administrative rulings available to the public, violated the right to access to information under the guidelines of Article 10 of the European Convention on Human Rights (ECHR or the Convention). The Council of State determined that the Convention authorizes the restriction of the right to freedom of expression to protect the right to private and family life and to protect the interests of the Nation, which is the objective of the Decree. Therefore, the claims were considered not grounded in law to request the revocation of the Decree.

Facts

On October 7, 2016, France adopted Law No. 2016-1321, with the purpose of establishing a Digital Republic. This law specified the principles according to which judicial decisions must be made available to the public, free of charge, while respecting the privacy of those directly involved. This led to the adoption of Law No. 2019-222 of March 23, 2019, on the digitization of justice in the period 2018–2022, which, through its Article 33, specified the regime for making judgments available to the public. This regime was mainly developed through the amendment of Article L. 10 of the Administrative Justice Code and Article L. 111-13 of the Code of Judicial Organization.

Under both articles, court decisions are made available to the public free of charge, in electronic format, but the names and family names of the individuals and any parties involved in the proceedings are suppressed or edited when necessary. The main purpose of this measure of confidentiality was to avoid any threat to the privacy or security of the persons involved or their case, which is why the names of the judges and the clerk of the court are also edited or suppressed.

Furthermore, the previously mentioned Article 33 incorporated Article L. 114 in the Code of Judicial Organization, and Article L. 10-1 in the Code of Administrative Justice. In the terms of these two articles, third parties may obtain copies of court decisions, with the restriction of not requesting them excessively. Additionally, it is indicated that the names of the individuals involved will always be withheld, including the names of the judges, if the disclosure could compromise their private lives or the interests of the Nation.

Subsequently, these new provisions were validated by the French Constitutional Council, which established that the new provisions are designed to: (i) protect the private life of the persons implicated, as well as the names of the judges who were responsible for making the decision; (ii) protect the fundamental interests of the Nation, which is one of the justifications for redacting the names of the judges; (iii) prevent the creation of a database that could predict the behavior of the different jurisdictions in the country, also explaining why the names of the judges are withheld; and (iv) prevent excessive and unjustified requests for copies from placing an unsustainable work and economic burden on the courts.

On November 29, 2020, to clarify and implement the provisions of the already mentioned articles, Decree No. 2020-797, on making judicial and administrative rulings available to the public, was adopted. Consequently, on August 31, 2020, and July 5, 2022, the company Fiatlux (Fiatlux), specialized in the publication of professional journals analyzing jurisprudence, and Mr. Stéphane Bonifassi (Mr. Bonifassi), a French lawyer, filed an application before the French Council of State to revoke the first six articles of the Decree.

Decision Overview

Presided over by Ms. Isabelle de Silva, the Council of State delivered a unanimous decision. Concerning freedom of expression, the main issue before the Council of State was whether the parameters established for access to court decisions represented a violation of the freedom to receive and divulge information, which would represent a violation of freedom of expression.

The applicants mainly claimed the following: (i) the decree disregarded the principle of transparency and public access to judicial decisions, which would go against Article 10 of the Convention, as well as Article 6.1, which, combined, establish the right to a fair trial and the public nature of judicial decisions; (ii) it is illegal to use excessively vague criteria such as “protection of the fundamental interests of the Nation”, which would go against Article 10 of the Convention; (iii) the suppression of information undermines the transmission of detailed facts to the public, which makes the information provided hard to interpret; (iv) an illegal procedure was implemented in which the Public Prosecutor had to authorize the delivery of appealable judgments, and the request for such delivery must have been legitimately justified; and (v) no uniform or reasonable deadlines were established for the delivery of judgments, since criminal judgments would be delivered within six months and administrative court judgments within two months.

The Council of State stated that measures such as restricting the number of copies, in the case of abusive requests, are intended to ensure the proper functioning of the judicial system and avoid the useless spending of economic resources and time. Therefore, they do not represent a disproportionate restriction on freedom of expression, but rather ensure a time-efficient response to individuals’ requests for justice. As such, the Council of State affirmed that the withholding or redacting of information concerning the names of the parties and the magistrates addresses situations in which the physical and moral integrity of the parties involved could be harmed. Additionally, the fact that the names of those involved are omitted guarantees that no databases will be created that could be used for the subsequent identification of persons who have undergone judicial and administrative proceedings and, therefore, their privacy (especially in cases involving minors), their presumption of innocence (in the case of non-final judgments), and their right to social reintegration, as one of the objectives of the judicial system, would be harmed.

In addition, the Council of State declared that such measures contribute to the protection of commercial and industrial secrets, which, if disclosed, could not only represent an attack on the respective parties, but also on the fundamental interests or objectives of the Nation. According to the opinion of the Council of State, these fundamental objectives have constitutional rank and would encompass everything that could threaten independence, economic stability, or territorial integrity, which is considered sufficiently concise and relevant and, consequently, represents an acceptable criterion to anonymize the names of the parties, including the names of the judges, who were part of a judicial or administrative process.

In this regard, the Council of State held that the safeguarding of territorial integrity, public safety, and the reputation and physical and moral security of the rights of others represent valid reasons, established in the Convention under Article 10.2, for limiting the access to and disclosure of certain data, especially when such information could affect law enforcement authorities and their impartiality.

Regarding the analysis of the deadlines for the delivery of judgments, the Council of State determined that both jurisdictions have different organization and operation, which is why it would be disproportionate to establish the same deadline for both. [para. 14]

As a result, the Council of State ruled that the measures consolidated by the laws and the Decree, and criticized by the applicants, were not disproportionate and were in accordance with Article 10 of the Convention. As such, the applicants’ claims were not grounded in law to request the revocation of the Decree.