Case Law, Strasbourg: Couderc and Hachette Filipacchi Associés v France, A Hereditary Game of Thrones – Alexia Bedat

13 06 2014

????????????????????????????In the case of Courdec and Hachette Filipacchi v France the privacy rights of another member of Monaco’s ruling family were outweighed by the interests of the press: French court order found to have breached Paris-Match’s Article 10 by Strasbourg.

Background

The applicants were the company Hachette-Filipacchi, the publisher of Paris-Match and its editor, Anne-Marie Couderc.

On 3 May 2005, the Daily Mail published claims by a Mme C (C) that Prince Albert II of Monaco was the father of her son. The article reproduced the main points of an interview by C due to be published by Paris-Match. Notified of the imminent publication, Prince Albert served a notice on the applicants to refrain from publishing the article. Paris-Match ignored the notice and published the article, as a cover story, on 5 May 2005.

The ten-page interview detailed the relationship between C and Prince Albert and was accompanied by several photographs showing Prince Albert alongside C or the child. The photographs had been taken by C, in her apartment, with Prince Albert’s consent. A further article appeared simultaneously in the German weekly magazine Bunte (Prince Albert’s claim in relation to this article failed before the German courts).

Prince Albert issued proceedings alleging breaches of his right to privacy and image rights.  On 29 June 2005, the Nanterre tribunal de grande instance awarded Prince Albert EUR 50,000 by way of damages and ordered Paris-Match to publish a full-feature front-page extract of the judgment. The applicants appealed and obtained a suspension of the judgment’s immediate enforceability.

On 6 July 2005, Prince Albert issued a statement, publically acknowledging his paternity of the child.

On 24 November 2005, the cour d’appel de Versailles upheld the damages award and publication order, but diminished the size of the ordered publication to one third of the front cover. The judgment was eventually published on the cover of the Paris-Match issue of 5 January 2006, accompanied by the editorial note “Albert of Monaco: The truth condemned. Paris-Match had revealed the existence of his son, A. Justice punishes freedom of information. The international press is reacting and supports us”.

On 27 February 2007, the Cour de cassation dismissed the applicants’ appeal on the grounds that: (1) every person, whatever his or her social rank, birth, fortune, present or future functions, was entitled to the right to respect for his private life; (2) at the time of publication, the existence and parentage of the child had been unknown to the public; (3) the Constitution of Monaco prevented any child born out of wedlock from succeeding to the throne, thereby rendering any debate on the child’s parentage among French or Monegasque society unnecessary and (4) the article contained details of the circumstances of C and Prince Albert’s relationship, Prince Albert’s reactions to the pregnancy and his subsequent conduct towards the child. The article was, consequently, void of any matter of general interest justifying its publication. Furthermore, the publication of photographs to illustrate what was already a breach of privacy was necessarily a breach of Prince Albert’s image rights.

The applicants appealed to the European Court of Human Rights (the Court), arguing that the court order against them amounted to a breach of Article 10. The applicants submitted, in particular, that in the context of a hereditary monarchy, a modification of the constitutional rule prohibiting the succession to the throne of an illegitimate child could not excluded.

Judgment

By a majority of four votes to three, the Court held that there had been a violation of Article 10. The French Courts had failed to distinguish between the information which formed part of a debate of general interest and that which pertained merely to the sphere of Prince Albert’s private life. There was no reasonable relationship of proportionality between the restrictions on the applicants’ right to freedom of expression and the legitimate aimed pursued.

The Court first set out well-known general principles from its Article 10 case-law and the essential role of “watch-dog” played by the press in a democratic society. It reiterated that those in political positions had to display greater tolerance, Lopes Gomes Da Silva v Portugal (2002) 34 EHRR 56 and Artun and Güvener v Turkey no. 15510/01 considered.

Having regard to the margin of appreciation enjoyed by national courts, the Court applied the criteria set out in von Hannover v Germany (No.2) (2012) 55 EHRR 15 and Axel Springer AG v Germany [2012] ECHR 227 as relevant for the balancing exercise between Articles 8 and 10:

  1. Contribution to a debate of general interest

A distinction had to be made between the core message of the article and the details contained therein. Even if, under the current state of the Constitution of Monaco, the child could not succeed to the throne, his very existence was such as to interest the public and notably the citizens of Monaco. In the context of a hereditary constitutional monarchy the birth of a child was of particular interest. In addition, the Prince’s behavior could be an indicator of both his personality and ability to perform his functions properly, Ruusunen v Finland n.73579/10 considered. The need to protect Prince Albert’s private life had to be balanced against the debate on the future of the hereditary monarchy. The matter being one of political importance, there had been a legitimate public interest in knowing of the child’s existence and being able to debate the possible implications it had on Monegasque political life.

The Court noted that the article contained as well elements relating exclusively to the private, or even intimate, life of Prince Albert and C, to which it made clear its analysis on public interest did not apply.

  1. Notoriety of the person concerned and the subject matter of the report

As Head of State, Prince Albert had evidently been a public figure at the time where the interview had been published. The Court reminded that it was not just Prince Albert’s private life that had been at stake, but equally that of C and of the child. It was difficult to conceive how the private life of a person – in this case, Prince Albert – could be an obstacle to the claims of another person – his son – seeking to affirm his existence and to make his identity known to the world. C had consented to the publication on her own behalf and on that of her son.

  1. Method of obtaining the information and its veracity

Unlike previous cases before the Court where the press had itself investigated and discovered information (see Von Hannover (No.2) and Axel Springer), it was C, one of the individuals directly concerned, who had taken the initiative to bring the information to the press’s attention. Similarly, the photographs accompanying the article had been taken by C, in the privacy of her apartment, in circumstances which were not adverse to Prince Albert nor to the child. The Court further noted that Prince Albert had only challenged the publication, rather than the authenticity, of the photographs.

The fact that the interview had been initiated by C and that she had willingly handed over the photographs to the magazine was an important factor to take into consideration when balancing the protection of private life against freedom of expression.

  1. Content and consequences of the publication

Over a million copies had been printed of the Paris-Match issue in question. The Court noted, however, that the content of the interview with C and a number of photographs had already been published by the Daily Mail on 3 May 2005 and by the German weekly magazine Bunte on 4 May 2005. In such circumstances, although the article had certainly had significant repercussions, the information it contained was no longer confidential. The Court further pointed out that article contained no defamatory allegations and that Prince Albert had not questioned the truth of the claims made therein.

  1. Severity of the sanction imposed

The Court observed that in addition to the considerable sum of EUR 50,000 granted by way of damages, the applicants had been required to publish a statement, occupying one third of the cover page.

  1. Effect of the publication on those concerned

The Court noted that, in making the disclosure, C had sought to obtain public recognition of her son’s status and of Prince Albert’s paternity, both crucial factors in enabling her son to emerge from secrecy. In doing so, she had revealed information that had not been necessary and fell within the sphere of Prince Albert’s private life.

Comment

The Court’s willingness to substitute its view for that of the French courts may come as a surprise following its recent “light-touch” approach to reviewing the findings of a domestic court in privacy challenges (see for example von Hannover (No.2) and (No.3) and Lillo-Stenberg v Noway). Its finding that the article contributed to a debate of general interest, however, is consistent with the relaxation of the term “debate of general interest” in von Hannover (No.2). As illustrated by von Hannover (No.3) – which concerned the trend among celebrities of renting their holiday homes – the lowered threshold, as it stands today, is not hard to meet. It is also interesting that the Court considered as relevant matters the fact that the information published was true and not defamatory; it is in the nature of private information that in many, even most, cases it will be true, yet still an interference with Article 8 rights.

A strong dissenting opinion was given by judges Villger, Zupančič and Lemmens, who disagreed with the majority’s entire application of the balancing criteria. The judges took particular issue with the emphasis placed on the interests of C and the child. Notwithstanding the presence of such interests, the case remained, in their opinion, a classic conflict between the Article 10 rights of the press and the Article 8 rights of an individual. Turning to the article’s contribution to a debate of general interest, the dissenting judges considered that the majority’s account of the interview did not accurately reflect reality. C had not been asked about the issue of succession to the throne. Any comment made to that effect had been offered by C of her own accord. There had been no reason to dismiss the national courts’ observation that the Constitution of Monaco made it impossible for the child to succeed to the throne and that the birth of the child pertained solely to the sphere of Prince Albert’s private life. In any event, the article disclosed a large number of details that went to the very core of Prince Albert’s private life, such that there had been a pressing social need to restrain the applicants’ freedom of expression. Furthermore, the publication of the photographs considerably increased the degree of intrusion into Prince Albert’s private life. The main, if not sole, aim of the publication, the minority concluded, had been the satisfaction of public curiosity into the details of Prince Albert’s private life.

With regards to the implications of the article, the minority took the view that the existence of an illegitimate son had not been known at the time of the publication. The (near) simultaneous reports by other magazines and newspapers made no difference to the “bombshell” effect of publication.

The minority further expressed scepticism as to the weight to attribute to C’s alleged motive for making the disclosure for her son’s sake. It noted that although Prince Albert had not publically acknowledged the child as his son, he had already done so before a notary in 2003.

Finally, the minority observed that the considerable damages awarded against the applicants had to be weighed against Paris-Match’s revenue. The requirement to publish a statement on one third of the cover page was not unduly restrictive on freedom of expression. Such a publication could, on the contrary, constitute adequate redress for a victim, Société Prisma Press v France, n.66910/01 considered. The majority merely noted the existence of the order to publish a statement. Such reasoning, which reflects that in a previous case brought by the applicants (Hachette-Filipacchi v France n.71111/01), suggests that orders made under section 12 of the Defamation Act 2013 to publish a summary judgment would not fall foul of Article 10 in Strasbourg.

Alexia Bedat is a barrister, currently working as a paralegal at 5RB.

This post originally appeared as a case report on 5RB’s website and is reproduced with permission and thanks

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One response

17 06 2014
Laura | Dutch Law Firm AMS

Interesting case. I think it is a difficult decision for the court. It is hard to define what general interest means exactly.

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