Last Updated on February 10, 2021 by LawEuro
Information Note on the Court’s case-law 247
January 2021
Société Editrice de Mediapart and Others v. France – 281/15 and 34445/15
Judgment 14.1.2021 [Section V]
Article 10
Article 10-1
Freedom of expression
Order to remove from a website illegally recorded extracts of the private conversations of a vulnerable public figure was justified, notwithstanding the fact that they had been reproduced by other media: no violation
Facts – The applicants are an online news site, Mediapart, its publishing editor and a journalist. In the course of 2009 a dispute arose between Ms Bettencourt (who died in 2017), principal shareholder of the L’Oréal group, and her daughter, on account of large financial gifts to third parties. Conversations between Ms Bettencourt and her confidants, including P.D.M., her wealth manager, were secretly recorded by her butler between May 2009 and May 2010. Having been informed that Ms Bettencourt’s daughter had transmitted these recordings to the national police financial brigade, in June 2010 the applicants decided to publish audio extracts and transcripts online. However, the national courts ordered that these extracts be were to be removed and prohibited their further publication.
Law – Article 10
The order to remove the illegal recordings and the ban on further publication amounted to an interference by a public authority with the applicants’ right to freedom of expression. The interference had been prescribed by law and pursued the legitimate aim of protection of the reputation or rights of others. Irrespective of the constituent elements for prosecution and punishment as an offence under French law, the secret recordings had constituted a sufficiently serious intrusion to bring into play the right of Ms Bettencourt and P.D.M. to respect for private life under Article 8 of the Convention.
The applicants could not rely on their acquittal by the criminal courts in support of their allegations before the Court that the interference had been disproportionate. The civil and criminal proceedings brought in this case had different objectives.
In the present case, the court of appeal to which the case was remitted and the Court of Cassation had addressed the conflict between rights from the standpoint of the manner in which the recordings in question had been obtained. In consequence, the order had been considered as a restriction on the applicants’ freedom to inform, one that was necessary to ensure respect for the private life of Ms Bettencourt and P.D.M. This balancing of the rights in issue had resulted in respect for private life being given priority over freedom of expression, even though the published extracts concerned a debate of general interest, on account not only of the illegal origin of the publications but also of their impact and thus of the seriousness of the interference with the private life of the individuals concerned. The Court did not intend to re-examine the contribution made by the publications to a debate of public interest, given that this had not been seriously disputed. It therefore concentrated on the elements taken into consideration by the urgent-applications judge in characterising the publication as “unlawful nuisance” and in deciding to put an end to it.
The disclosure of extracts from the recordings, which the applicants had known to be an offence, ought to have led them to show prudence and precaution, irrespective of the fact that their actions were intended, inter alia, to condemn the exploitation of Ms Bettencourt’s weakness. Although the applicants submitted that they had filtered the statements so as to select those extracts which touched on matters of general interest, the Court of Cassation had held that this element was insufficient in view of their duties and responsibilities as journalists. It had held that the public could have been informed about these matters by other means than providing access to the illegal recordings. Journalists could not claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question had been committed during the performance of their journalistic functions.
Having regard to the scope of the publications on Mediapart’s site, and the disclosure of the conversations through online extracts, with direct audio access in certain cases, and in spite of the checks carried out by the applicants, the domestic courts could legitimately have concluded in the circumstances of the case that the public interest had to yield to Ms Bettencourt’s and P.D.M.’s right to respect for their private life. Although access to the Mediapart site had not been free of charge, the transcribed statements had been visible to a large number of people and had remained online for a considerable period of time. It had been reasonable for the domestic courts to consider that the information could have been established by investigation and analysis, protected under journalists’ privilege of non-disclosure of sources.
As to the dissuasive nature of the measures imposed on the applicants, in justifying the order in question the court of appeal had held that access to the recordings via the news site amounted to a persistent disturbance of the intimate side of the plaintiffs’ private lives. The Court of Cassation had considered that the penalty was proportionate to the offence committed, although the content of the recordings initially disclosed by the applicants had subsequently been reported by other news media.
The national courts could legitimately have considered that the passage of time had not eliminated the interference with P.D.M.’s and Ms Bettencourt’s private life, given the impact of the published extracts, which they had assessed with regard to the manner in which the transcribed conversations had been recorded, Ms Bettencourt’s vulnerability, and, more generally, the extent of the damage inflicted by them on the individuals in question. The sensitivity of information that was intrusive in terms of private life and the ongoing nature of the harm caused by access to the written and audio transcripts on the news site called for a measure that could put an end to the disturbance, which was not included in the option of imposing compensation. A different measure to that ordered would have been insufficient to provide effective protection for the plaintiffs’ private life.
The Court of Cassation had held that the fact that the information in question had been reproduced on other sites or in the press was not to be taken into consideration. Admittedly, the Court had already emphasised on several occasions that it was not admissible under Article 10 to prevent the disclosure of information that had already been made public or had ceased to be confidential. Nonetheless, the national courts had found against the applicants in order to end the disturbance caused to a woman who, albeit a public figure, had never consented to the disclosure of the published statements, was vulnerable and had a legitimate expectation of having illegal publications – which she had never been able to comment on, in contrast to the possibility available to her during the criminal trial – removed from the news site. In those circumstances, the Court also accepted that the order had been intended to redress the initial interference with the private lives of Ms Bettencourt and P.D.M. Although the content of the recordings had been largely disseminated by the time that the court order was imposed, their verbatim publication had been unlawful from the outset and remained prohibited for the press as a whole. The Court further noted that the applicants, who had been acquitted in the criminal proceedings, had not been deprived of the possibility of fulfilling their task of providing information about the public aspect of the Bettencourt case. In those circumstances, the applicants had not shown that the removal of and ban on further publication of the contents of the recordings could indeed have had a deterrent effect on the way in which they exercised and continued to exercise their right to freedom of expression.
The reasons relied upon by the national courts were relevant and sufficient to show that the interference complained of had been “necessary in a democratic society”, and that the order in question had not gone beyond what was necessary to protect Ms Bettencourt and P.D.M. from the interference with their right to respect for private life.
Conclusion: no violation (unanimously).
(See also Radio Twist a.s. v. Slovakia, 62202/00, 19 December 2006, Legal summary)
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