Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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The European Court of Human Rights found that the French courts had not violated Article 10 of the European Convention on Human Rights by sanctioning a journalist, the editor-in-chief, and operating company of the Le Point magazine for extensively publishing criminal procedural documents before they were read in open court. The magazine articles in question dealt with the high-profile “Bettencourt case,” which concerned allegations that a close friend of the main shareholder of L’Oreal had exploited her vulnerability to receive large donations from her. The European Court found that the protection of the right to a fair trial and the proper administration of justice prevailed over the right to freedom of expression in the present case. The European Court took account of the fact that the articles presented the procedural documents in a biased way, pointing towards the guilt of the accused. It also reasoned that the French courts sufficiently took into account the right to freedom of expression and was entitled to find that it was not seriously impaired because the journalists could still report the story without reproducing the documents. The European Court also found that the journalists should have been aware that the documents could not be disclosed under French law, even when they were not obtained illicitly or fraudulently. The European Court concluded that the interference with the right to freedom of expression was justified in this case.
The case concerned the editor (Franz-Olivier Giesbert) and a journalist (Hervé Gattegno) from the French weekly magazine Le Point, who had published articles about the “Bettencourt case.” The “Bettencourt case” was a famous trial in France concerning the main shareholder of L’Oreal, Mrs. Bettencourt, who had donated large sums of money to a friend (Francois- Marie Banier), who was accused of taking advantage of Mrs. Bettencourt. In 2007, a preliminary inquiry was held into whether Mr. Banier had been guilty of exploitation of weakness. In September 2008, he was taken into custody.
On December 10, 2009, Le Point published a 4-page article about the case. It spoke about the donations that had been made to Mr. Banier, totalling one billion euros, and described Mr. Banier as having exercised psychological domination over Mrs. Betttencourt. The article contained comments in quotation marks, presented as excerpts from statements made to the investigators, and included statements made by Mrs. Bettencourt to the police.
On February 4, 2010, Le Point published an article entitled “The Bettencourt affair: how to earn a billion (without too much trouble)”, which reproduced excerpts from statements made during the preliminary inquiry by persons working at Mrs. Bettencourt’s home. The article ends with a brief indication that Mr. Banier had refused to reply to Le Point.
On February 11, 2010, Mrs. Bettencourt and Mr. Banier brought interim proceedings before the Paris Tribunal de Grande Instance (TGI) against Mr. Giesbert, Mr. Gattegno and the operating company of Le Point over the article that had been published on February 4, 2010.
Mrs. Bettencourt’s case was that the reproduction of investigation documents from the preliminary inquiry had violated section 38 of the 29 July 1881 Freedom of the Press Act (Press Act). Section 38 of the Press Act penalized the publication of criminal proceedings before they have been read in open court. The TGI held that the publication of the pleadings from the preliminary inquiry had violated the Press Act, and that Mrs. Bettencourt’s rights had been infringed because the pleadings presented her as a woman who was weak and had been manipulated (which she disputed). The TGI found that the right to freedom of the press had not been violated because section 38 of the Press Act was concerned with preserving the independence of the judiciary, and it did not prevent analysis or comment on the pleadings (only their reproduction where they are meant to be made public during the judicial process). It ordered Mr. Giesbert, Mr. Gattegno and the operating company to pay 3,000 EUR in damages and another 3,000 EUR in costs and expenses. Mr. Banier’s case was that the article violated his right to a fair trial and his right to the presumption of innocence. The TGI agreed and ordered that the paper publish a notice of the TGI’s conclusion and that Mr. Banier be paid 3,000 EUR for non-pecuniary damage (plus costs).
On appeal, the Paris Court of Appeal upheld the orders of the TGI in most part but increased the amount of damages to Mrs. Bettencourt to 10,000 EUR. The Court of Cassation dismissed the further appeals of Mr. Giesbert, Mr. Gattegno and the operating company of Le Point, and found that there had been no violation of the right to freedom of expression under Article 10 of the European Convention on Human Rights.
In March 2010, Mr. Banier brought a claim for compensation suffered as a result of the December and February articles in violation of section 38 of the Press Act. At first instance, the TGI dismissed his claim on the basis that to grant such a claim would violate the right to freedom of expression. In February 2012, the Paris Court of Appeal set aside the TGI’s decision and found that the articles violated Mr. Banier’s right to a fair trial and right to presumption of innocence and violated section 38 of the Press Act. Mr. Giesbert, Mr. Gattegno and the operating company were ordered to pay 1 EUR in compensation for each publication and 6,000 EUR in costs and expenses. The Court of Cassation subsequently dismissed the appeal of this decision.
On May 28, 2015, Mr. Banier was found guilty of exploitation of weakness and sentenced to three years’ imprisonment (of which he had to serve thirty months), a fine of 350,000 EUR, and 158,000,000 EUR in respect of damages payable to Mrs. Bettencourt.
Relying on Article 10 of the European Convention on Human Rights, Mr. Giesbert, Mr. Gattegno and the operating company claimed that their convictions under section 38 of the Press Act had violated their right to freedom of expression.
The European Court of Human Rights (Court) began by stating that the French courts’ findings against the Le Point, its editor-in-chief (Mr. Giesbert) and the journalist (Mr. Gattegno) constituted an interference with their right to freedom of expression. The Court then had to examine whether the interference met the requirements set forth under Article 10 of the European Convention on Human Rights (Convention) for an interference to be justified, namely whether the interference was “prescribed by law,” in pursuit of a legitimate aim and “necessary in a democratic society.”
The Court held that the interference was “prescribed by law” as it was made pursuant to section 38 of the Press Act. Furthermore, the provision was found to be sufficiently foreseeable to meet the quality of law required under Article 10 of the Convention. The Court also added that, as the editor and journalist were media professionals, they were in a position to assess the risk at the time they published the articles. According to the Court, Mr. Giesbert, Mr. Gattegno and the operating company could not claim that they could not foresee “to a reasonable degree” the consequences of the publications at the judicial level. [para. 79]
As for the legitimate aim, the Court held that the interference was intended to protect “the reputation and rights of others” and guarantee “the authority and impartiality of the judiciary.” [para.82] For instance, it sought to protect Mr. Banier’s right to a fair trial and Mrs. Bettencourt’s rights in relation to the proper administration of justice.
When assessing whether the interference was “necessary in a democratic society,” the Court relied on a number of factors set out in its judgment in Bédat v. Switzerland to balance the competing rights of the right to freedom of expression (Article 10 of the Convention) and the right to a fair trial (Article 6 of the Convention).
How the applicant came into possession of the information at issue
The Court noted that Mr. Giesbert and Mr. Gattegno must have been aware of the origin of the documents reproduced in their articles and of the confidentiality of that information. The Court noted that it was not decisive whether the documents were obtained illicitly or fraudulently, as section 38 of the Press Act targeted and punished not the conditions under which a procedural document had been obtained but the mere fact of its publication. The Court concluded that Mr. Giesbert and Mr. Gattegno must have been aware that the publication contravened section 38 of the Press Act. [para. 86]
The content of the impugned article
The Court found no reason to substitute the opinion of the Court of Appeal and the Court of Cassation. The Court agreed that the articles tended to accuse Mr. Banier of having manipulated Mrs. Bettencourt. The first article, although the journalist was careful not to draw any explicit conclusions, used quotations to highlight inconsistencies in Mr. Banier’s testimony and suggest his guilt. The second article lacked neutrality or nuance, and similarly pointed towards his guilt.
The contribution of the impugned article to a public-interest debate
The Court considered that the proceedings had involved public figures and, even before the two articles were published, the “Bettencourt case” had received a lot of media attention. The Court also noted that the public had a legitimate interest in being informed about criminal proceedings and the functioning of the judiciary. The Court noted that the domestic courts did not dispute the public interest nature of the articles. Instead, they concluded that such a public interest could be satisfied without disclosing the documents subject to section 38 of the Press Act. Therefore, the Court held that it could not infer that the domestic courts did not take into account the contribution made to a debate of general interest. Furthermore, the fact that they did not find the contribution sufficiently relevant fell within their margin of appreciation. [para. 94]
The influence of the impugned article on the criminal proceedings
The Court reiterated the importance of journalists writing articles about ongoing criminal proceedings without reducing the chances of a person receiving a fair trial or undermining public confidence in the role of the courts. It went on to say that even a simple risk of influencing the outcome of such proceedings may suffice for a measure to be justified, provided the risk is appreciable to the authorities. The Court held that publishing the articles about Mr. Banier shortly before he appeared before court or the first scheduled hearing could have significantly influenced the conduct of the proceedings and affected potential witnesses or even the judges. The Court reiterated that publishing a biased article could affect the objectivity of the court, regardless of its composition (i.e. judges or juries). [para. 97]
The Court did not agree that the extensive media coverage of the case had vindicated the verbatim publication of numerous lengthy excerpts from procedural documents before they had been read in open court. Given the complex issues before the courts, the publication of quotations from these documents in biased articles had risked disrupting the proper conduct of the proceedings and jeopardising Mr. Banier’s right to a fair trial.
The Court noted that section 38 of the Press Act was not general and absolute, and did not totally impede the right of the press to inform the public about the proceedings. It concluded that the journalists in this case could have alleviated the risk without the substance of their articles being affected.
The Court also found that the articles could have had negative repercussions on the administration of justice in relation to Mrs. Bettencourt.
Invasion of privacy
The Court noted that the national courts had found no infringement of the private lives of Mr Banier or Mrs. Bettencourt.
Proportionality of the penalty
The Court held that the penalties imposed, namely publication orders, 3,000 EUR in the proceedings for interim measures, 1 EUR per article in compensation to Mr. Banier, and 10,000 EUR in damages to Mrs. Bettencourt. The Court concluded that these sanctions could not be deemed excessive or capable of having a deterrent effect on the exercise of freedom of the media.
In conclusion, the Court found that national courts had adduced relevant and sufficient reasons to interfere with the right to freedom of expression in this case. The Court concluded that the interference had met a sufficiently compelling social need to override the public interest in the freedom of the press, and it could not be deemed disproportionate to the legitimate aims pursued. Therefore, there had not been a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression since the European Court of Human Rights (Court) applied a restrictive approach to the publication of excerpts of criminal procedural documents before a public hearing was held. In its judgment, the Court applied its strongly-criticized judgment in Bédat v. Switzerland and refused to confine the reasoning in that case to the publication of information covered by the secrecy of a pending investigation. Instead, the Court extended the reasoning to situations where journalists disclose documents that form part of criminal proceedings before they have been read in open court. This judgment throws into doubt the extent to which the Convention right to freedom of expression protects a journalist’s right to publish confidential information relating to criminal proceedings. It is even more concerning given the fact that the Court admitted the articles in this case dealt with a matter of considerable public interest. In the past, the Court had stated that there is little scope under Article 10 of the Convention for interferences with expression dealing with matters of public interest. The Court seems to be going back on that principle.
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