Content Regulation / Censorship, Press Freedom, Privacy, Data Protection and Retention
AMM v. News Group Newspapers
Closed Contracts Expression
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The European Court of Human Rights (ECtHR) held that an order for the removal of extracts from recordings taken at a private residence does not violate the right to freedom of expression. After a French news website published text and audio extracts of the recordings, the family of the woman whose communications had been recorded brought applications seeking the removal of the extracts from the relevant articles. Given that the woman was a prominent businesswoman, the lower French courts found that the public interest of the recordings justified the invasion of privacy. The appeal courts reversed that decision, holding that the recordings had been made illegally and the publication was an invasion of the right to privacy. The ECtHR emphasized that the journalists involved knew that the recordings were illegally obtained and that a public person does not automatically give up all expectations of privacy – especially when they do not hold public office.
In 2009, the daughter of Liliane Bettencourt, principal shareholder in the L’Oréal group, suspected that her mother was being abused by a close relative. Ms. Bettencourt’s former butler made a series of recordings over a period of almost a year at her personal residence which mainly involved Ms. Bettencourt and her financial advisor, P.D.M. Ms. Bettencourt’s daughter submitted recordings of the conversations held at Ms. Bettencourt’s home to the police.
In June 2010, Médiapart, a French news website, published articles containing extracts from the recordings. They believed the recordings contained information of general interest since they revealed a potential “abuse of weakness” of the head of one of France’s biggest companies, as well as issues related to compliance with tax laws, the independence of the executive, the ethics of public officials and the independence of the judiciary. The recordings covered exchanges concerning privileged treatment given to one of L’Oréal’s financial advisors (who was also the wife of the Minister of the Budget), cheques made to politicians and political parties, and possible tax avoidance on the part of Ms. Bettancourt. The articles specified that only the “most significant extracts because they contain information of general interest” were published, and that “all references to the private lives and intimacy of individuals have of course been excluded”. The articles acknowledged that the recordings were obtained through a “morally-if not criminally-condemnable process”.
In 2010, Ms. Bettancourt and P.D.M. brought separate summary civil actions against Médiapart, its director Edwy Plenel and a journalist, Fabrice Arfi. The actions were brought under articles 809 of the French Code of Civil Procedure and 226-1 and 226-2 of the Penal Code. The Penal Code provision creates offences punishable by one year’s imprisonment and a fine of 45,000 euros for “wilfully violating the privacy of others […] by capturing, recording or transmitting, without the consent of the author, words spoken privately or confidentially” (art. 226-1 Penal Code) and “making known to the public […] any recording or document obtained by means of one of the acts provided for in article 226-1” (art. 226-2 Penal Code). As these were civil proceedings, the interim relief judge had to consider whether measures were required to “put an end to a manifestly unlawful nuisance” (art. 809 Code of Civil Procedure).
The Tribunal de Grande instance de Paris (trial court) dismissed the actions on the grounds that the intercepted conversations were of a financial nature for Ms. Bettencourt and of a professional nature for P.D.M., and therefore fell within the scope of legitimate public information.
On appeal, in 2010, the Paris Court of Appeal upheld the lower court’s ruling, adding that the absence of consent at the time of recording did not render the disturbance caused by their broadcast manifestly unlawful as the key criterion was that of invasion of the privacy of others.
In 2011, the Cour de Cassation (the supreme civil court) overturned the appeal decision and referred the case back to the Versailles Court of Appeal, ruling that the capturing of the video did indeed constitute an invasion of privacy that could not be justified by the need to inform the public.
In 2013, the Versailles Court of Appeal overturned the trial court’s decisions and ordered Médiapart to withdraw the transcript of the recordings and pay 10,000 euros to P.D.M. and 20,000 euros to Ms. Bettancourt. The Court found that the content of the statements made in the recordings were in nature confidential, that the news website knew that the recordings were the result of an intrusion into the private lives of the interested parties, and that the requirement of legitimate public information “cannot legitimize the broadcast […] of recordings obtained in violation of the right to respect for the private life of others”.
Médiapart appealed these decisions to the Cour de Cassation and submitted constitutional questions (QPC). The QPCs sought to challenge articles 226-1 and 226-2 insofar as they entirely prohibit any broadcasting of words spoken in a private or confidential capacity without the consent of their author. On February 5, 2014 and September 3, 2014, the Cour de cassation ruled that there was no reason to refer the QPC’s to the Conseil constitutionnel, since the Cour de cassation’s established case law does not recognize an absolute prohibition, but rather a prohibition limited to private individuals who intercept or broadcast conversations relating to the private life of others.
On January 2, 2014 and January 15, 2015, the Cour de Cassation rejected the appeals by concluding that the conversations fell within the intimacy of the parties’ private lives. It held that the contribution of the recordings to a public debate could not legitimize the invasion of the interlocutors’ privacy since legitimate public information could have been obtained through investigative and analytical work, which would then have been covered by the confidentiality of journalistic sources.
Médiapart then appealed to the European Court of Human Rights, arguing that the injunction infringed the right to freedom of expression under Article 10 of the European Convention on Human Rights.
In 2013, in addition to the civil proceedings, Médiapart and the director and journalist were referred to the Bordeaux Correctional Tribunal for contravening article 226-1 of the Penal Code. They were acquitted on January 2016 and the acquittal was confirmed in September 2017 by the Bordeaux Court of Appeal. Both courts held that the mere fact that the comments had been recorded without the author’s consent was not sufficient to establish the alleged offence. Even though publication of the extracts themselves had an “unnecessary spectacular dimension”, the courts found that Médiapart had not intended to infringe Ms. Bettencourt’s privacy, considering the reservations contained in the articles and the public interest behind the “vast majority” of the recordings published.
The European Court of Human Rights delivered a unanimous judgment. The central issue before the Court was whether the interference in the journalists’ right to freedom of expression was necessary in a free and democratic society.
Médiapart argued that the criminal courts had adequately balanced the issues of freedom of expression and journalistic work with the right to privacy, and that the Cour de cassation had not. They submitted that they had taken the necessary precautions to safeguard Ms. Bettencourt and P.D.M’s privacy, and questioned whether Ms. Bettencourt had a legitimate expectation of privacy since the issues at stake were matters of public interest, including her state of health and her estate. The journalists submitted that the sanction against them was serious and disproportionate as it amounted to censorship.
The French Government argued that the interference in the right to freedom of expression was justified by the need to protect the privacy of Ms Bettencourt and P.D.M. It accepted that the articles contributed to a debate of general interest, but submitted that the publication of the extracts revealed information about the private life of Ms. Bettencourt, who in this respect enjoys a legitimate expectation that her private life will be protected. Similarly, the journalists’ knowledge of the illicit origin of the recordings contributes to the violation of privacy, and the precautions they took cannot mitigate their responsibility for this violation.
The Court found that the order to remove the extracts constituted an interference with the exercise of the right to freedom of expression, that this interference was provided for by law (the Penal Code) and pursued a legitimate aim (the protection of the reputation and rights of others). It therefore only had to determine whether the order’s interference was justified in a free and democratic society by the need to protect the right of others to privacy.
Relying on the Grand Chamber’s judgment in Couderc and Hachette Filipacchi Associés v. France [GC], App. no. 40454/07 (2015), the Court explained that it would consider five criteria: the contribution to a debate of general interest; the notoriety of the person concerned; the subject of the report; the previous behavior of the person concerned; and the content, form and repercussions of the publication. However, the Court focused on the “duties and responsibilities” of journalists in exercising their freedom of expression and the potentially dissuasive effect of the sanction imposed. These two elements were also the ones taken in consideration by the trial court when verifying if the publication was a “manifestly unlawful nuisance” and determining the appropriate way to put an end to it. The Court added that contribution of the publications to a debate of general interest was not called into question by the French Government in the present proceedings.
The Court emphasized that journalistic work does not enjoy exclusive criminal immunity (Pentikäinen v. Finland [GC], App. no. 11882/10, (2015)), and that journalists, like everyone, must assume duties and responsibilities related to the exercise of free speech in terms of Article 10(2). The Court held that knowledge of the illicit nature of the recordings should have led the journalists to a heightened degree of caution, notwithstanding the ends pursued. As mentioned by the Cour de cassation, the screening of the extracts was not sufficient, especially as it was possible to communicate the information to the public without publishing the recordings. The Court concluded that the information could be obtained through investigative and analytical work, which would be covered by the right to confidentiality of sources.
The Court reiterated that a public person does not give up all legitimate expectations with regards to his or her private life simply because of his or her status – especially in this case as Ms. Bettencourt did not hold an official public office.
Given that the publication of the transcripts was visible by many people and remained online for a long period of time, the Court found it was legitimate for the national courts to conclude that respect for the private life had to prevail over the public interest.
The Court stressed that although it had repeatedly held that Article 10 implied that one should not be prevented from disclosing information already made public (see: Dupuis and others v. France, App. No. 1914/02 (2007) and Ressiot et autres v. France, App. no. 15054/07 and 15066/07 (2012)), in the present case, the author’s lack of consent and particular vulnerability gave her a “legitimate expectation that the unlawful publications would disappear from the newspaper’s website”. [para. 91] Even if the content of the recordings was widely disseminated, it remains that the literal publication was unlawful from the outset. The Court distinguished the present case from of Radio Twist, a.s. v. Slovakia, App. no. 62202/00 (2006), which had held that the mere broadcasting of an illegally captured recording did not deprive the third party of the protection of Article 10, on the grounds that the journalists were also aware that the recordings were unlawful and invasive of the author’s privacy.
The Court held that as the order did not deprive the journalists of informing the public about the subject itself (but merely withdrew the audio and transcribed extracts from the recordings), it did not “have any dissuasive effects on the manner in which they exercised their freedom of expression”. [para. 91] It found that the order to withdraw the extracts from the publications was an appropriate measure aimed at halting the invasion of privacy, particularly considering the sensitivity of the information and the ongoing nature of the damage caused by the publication of the extracts. Accordingly, the Court held that the interference created by the order to remove the extracts is a necessary interference in a democratic society and did not go beyond what is necessary to protect the right to privacy of the persons concerned, and so there was no violation of Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts freedom of expression by prioritizing how information was obtained – and whether the publisher knew if it was illegally obtained – in determining whether its publication is justifiable. This appears to contradict ECtHR jurisprudence that the publication of an illegal recording does not deprive a third party of the protection of Article 10 ECHR, and the interpretation of that Article which confers protection on the disclosure of information already made public.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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