Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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Choc, a French magazine, published photographs of a deceased torture victim. His family sued the magazine for violation of privacy and dignity. The French Court of Appeal ordered the magazine to black-out the photographs in the published editions. The European Court of Human Rights (“ECtHR”) held that the order to black-out the photographs did not violate Article 10 of the European Convention on Human Rights (“ECHR”) and that the ruling of the national court was justified, relevant, sufficient, and proportionate to pursue a legitimate aim, and therefore, necessary in a democratic society.
In January 2006, a 23 year-old man named Ilan Halimi was captured and tortured for 24 days. A month later, he was found near a railway track bound and gagged. He died from injuries inflicted by torture shortly thereafter. When he was captured, a ransom note was sent to his family along with a photograph of him with his hands bound by tape, visible signs of injury upon his face, and a gun pointed to his head. ((ECtHR, Société de Conception de Presse et d’Édition v. France, App. No. 4683/11 (2016), para. 5-7.)) In 2009, during the trial of those who were suspected of involvement in the case, the magazine Choc printed the photograph on the front cover, and four times on the inside of the magazine. ((Id. at para. 9.)) Halimi’s mother and sister sued the magazine ‘s publishing company for breach of privacy citing articles 9 & 16 of the French Civil Code, ((Id. at para. 10.)) which requires respect for privacy and dignity. ((Id. at para. 18.))
The French High Court ordered that the magazine be removed from all points of sale, holding that the magazine could not rely on the argument that the images had already been broadcast on television, nor could they rely on Article 10 because the photograph was not taken in public space, but rather, in a confinement and sent to the family for ransom purposes. Furthermore, the family had not granted permission for publication. The publishers appealed, but the French Court of Appeal affirmed the lower court’s decision, underlining Article 9 and 16 protections for privacy and dignity. ((Id. at para. 15.))
Thus, the publishers lodged an application before the ECtHR alleging a violation of Article 10. The publishers argued that French courts had misunderstood the application of Articles 9 and 16, and that, by publishing the photograph, the publisher had made an essential contribution to the debate about a topic of general interest. In addition, they pointed out that publication took place three years after the fact and the photograph had already been aired on a TV show with the family’s participation. Finally, it was argued that the the court’s sanction was too extreme, was unnecessary, and that freedom of reporting on human rights through the use of images about current events or court cases was primary. ((Id. at para. 23.))
The Government did not dispute that the French Court’s ruling was an interference with the applicant’s freedom of expression. Rather, it argued according to Article 10 exceptions to restrictions on the freedom of expression. Namely, it argued that the restriction was required by law, motivated by a legitimate aim, and that it was “necessary in a democratic society” to achieve that aim. ((Id. at para. 24.)) That aim was “protecting the rights of others,” as referenced in Article 10 of the Convention. ((Id. at para. 27.)) Furthermore, the court’s prohibition on publication was only related to the publication of the photograph, not the article itself. ((Id. at para. 29.))
Judges Angelika Nußberger, Ganna Yudkivska, Erik Mose, André Potocki, Yonko Grozev, Carlo Ranzoni, and Mārtiņš Mits delivered a unanimous judgement.
The Court disagreed with the applicant and agreed with the government that the interference with freedom of expression was prescribed by law, particularly by Articles 9 and 16, and the application of these laws was foreseeable in this case. ((ECtHR, Société de Conception de Presse et d’Édition v. France, App. No. 4683/11 (2016), para. 33.)) The Court also agreed that these laws pursued a legitimate aim, namely the protection of the rights of others: in this case, the private life of the mother and sisters of the Ilan Halimi. ((Id. at para. 33-34.)) Therefore, the Court held that the dispute hinged upon whether the interference was “necessary in a democratic society” given the requirement that the Court strike a fair balance between the right to privacy and the right to freedom of expression. ((Id. at para. 35.))
The Court agreed with the French Court of Appeals, which distinguished between the article and the photograph, citing earlier cases in which it was held that the publication of a photograph interferes with the privacy of a person and may contain personal and intimate information on an individual and family basis. ((Id. at para. 40-41.)) The ECtHR agreed with the appellate court that the photo was not of a public character because it was not taken in a public space, but rather, by torturers for ransom purposes. It also agreed that the photo was published without authorization despite the spread of the photograph through public broadcast. ((Id. at para. 43-44.))
Considering the treatment of a subject in the context of journalistic freedom, the Court held that, in cases concerning peoples’ privacy, journalists must consider the impact of information and images prior to publication, and that Article 8 of the Convention provides for particular protection of certain events of private and family life which must lead journalists to exercise caution and care. ((Id. at para. 45.)) The Court concurred with the French Courts and held that the suffering experienced by relatives of Ilan Halimi should have led the journalists to exercise prudence and caution, since the death was particularly violent and traumatic and the photograph would be distributed widely and resulted in the heightened trauma that would be suffered by them. ((Id. at para. 47.))
Examining the penalty, the Court held that ordering the hiding of the photograph was an appropriate punishment under the circumstances of the case, considering the invasion of privacy suffered by relatives of Ilan Halimi, while also restricting in a proportionate way the rights of the publishers. ((Id. at para. 51.)) The Court held that the applicants had failed to demonstrate how the order to conceal the photograph actually had a chilling effect on the way the offending magazine exercised its right to freedom of expression. ((Id. at para. 52.))
Thus, the Court held that the national courts were justified, relevant, sufficient, and proportionate to pursue a legitimate aim, and therefore, necessary in a democratic society. Therefore, the Court found no violation of Article 10. ((Id. at para. 53-54.))
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case upholds freedom of expression because while it does maintain that a magazine is required to hide photographs of a man who had been captured and tortured, it uses existing law concerning censorship, privacy, and human dignity to balance the rights of the family against the rights of the magazine. In this case, the magazine was unable to demonstrate a chilling effect on the way it exercised its right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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