Access to Public Information
Company Doe v. Public Citizen
Closed Expands Expression
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The European Court of Human Rights found that the conviction of two journalists for publishing photocopies of illegally obtained tax documents when the information obtained in the documents was freely available to the public, violated Article 10 of the European Convention on Human Rights (ECHR). Roger Fressoz and Claude Roire published information on the earnings of Jacques Calvet, the Chairman and Managing director of Peugeot, which revealed a 45.9% rise in his salary at a time of industrial unrest. The Court reasoned that the information about Calvet’s annual income was lawful and the applicants’ conviction for having published the documents in which that information was contained, namely the tax assessments, could not be justified under Article 10. The Court said that Article 10 protects journalists’ right to divulge information on issues of general interest provided that they are acting in good faith and on an accurate factual basis. Hence, Article 10 essentially leaves it up to journalists to decide whether or not it is necessary to reproduce documents, here the tax assessments, to ensure credibility. Accordingly, in this case, the interest in freedom of the press in a democratic society outweighed the need to punish journalists for publishing the materials.
The applicants Roger Fressoz and Claude Roire were publishing director and journalist respectively at the French newspaper Le Canard enchaîné. The newspaper published an article that implied Jacques Calvet, company chairman of the Peugeot motor company, had given himself a 45% raise over the past two years. Calvet lodged a criminal complaint against Fressoz and Roire arguing that the journalists must have obtained the tax documents cited in the article through misappropriation of documents.
An investigation followed, which produced evidence that the documents cited in the article had possibly been obtained illegally and on March 8th, 1991, Fressoz and Roire were charged with “handling copies of notices of assessment to tax obtained through a breach of professional confidence, unlawful removal of deeds or documents and theft” (para. 15). The proceedings for theft and breach of professional conduct were dropped in January of 1992 and the applicants were brought before the criminal court on charges of handling confidential information.
The Criminal Court acquitted the applicants, finding the crimes could not be made out as there was no evidence as to who had disclosed the documents. This was appealed to the Court of Appeal, which reversed and found the applicants guilty of handling the copies of the tax returns through a breach of professional confidence by an unidentified tax official and ordered the applicants to pay fines and costs totaling of 25,000 francs. This was appealed to the Commission, which found a breach of Article 10, but no breach of Article 6 § 2 (presumption of innocence).
The European Commission and French Government referred this case to the Grand Chamber for a decision on whether France had breached its obligations under Articles 6 § 2 and 10 of the Convention.
The applicants argued that their right to freedom of expression under Article 10 of the Convention had been violated. The government argued that the applicants had failed to exhaust their domestic remedies because they had not raised a violation of Article 10 of the Convention during the domestic proceedings. The applicants countered that they had raised the complaint of a violation of Article 10 of the Convention before the Court of Cassation in substance because they had referred to the Freedom of Press Act of July 29 1881, which established the principle of freedom of the press. The Court agreed.
To determine whether there had been a violation the Court looked to whether there was an interference, whether this interference was prescribed by law and pursued legitimate aims, and whether the interference was necessary in a democratic society. There was no dispute that the applicants’ conviction was an interference within the meaning of the Convention. The parties also were in agreement this interference pursued the legitimate aim of protecting the reputation of private citizens and preventing disclosure of confidential information. Therefore, the issue before the Court was whether this interference was necessary in a democratic society.
The Court noted the importance of freedom of expression and the essential role played by the press in a democratic society. The article in this case was published at a time when the issue of Calvet’s earnings was a matter of public debate, and reiterated that people who serve public or quasi-public functions do not enjoy the protections from publication of their assets that ordinary private citizens would enjoy. It said that, although publication of the tax assessments in the present case was prohibited, the information they contained was not confidential, indeed the information contained in them was freely accessible to the public. In these circumstances, the Court continued, there was not a sufficient proportionality between the legitimate aim of punishing criminal activity and the conviction of the journalists given the interest a democratic society has in ensuring and preserving freedom of the press. Therefore there had been a violation of Article 10.
The Court then held that in light of its finding that there had been a violation of Article 10 and the matters it took into account in so finding, no separate issue arose under Article 6 § 2 of the Convention.
The Court ordered reimbursement of the fines imposed on the journalists and awarded costs to the applicants.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression by holding that the state failed to carry out a proper balancing exercise between its legitimate aim in pursuing the journalists’ conviction, namely to protect the reputation or rights of others and to prevent the disclosure of information received in confidence, and a democratic society’s interest in protecting the freedom of the press.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Sections 1, 5, 6, 42
Articles 460, 378
Case significance refers to how influential the case is and how its significance changes over time.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other states that are party to the Convention.
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