In the case of Société de Conception de Presse et d’Édition v. France ( ECHR 216)(only in French), the Court of Human Rights, Fifth Section, held that a French court’s order that the publishers of Choc magazine should black out a photograph taken by the captors and torturers of a man who died did not violate their Article 10 rights.
The applicant, Société de Conception de Presse et d’Édition, is the publisher of the magazine Choc.
In January 2006 Ilan Halimi (referred to by the court as “IH”), aged 23, was held captive and tortured for 24 days. He died of his injuries. While he was being held, a photograph of him wearing shackles and showing visible signs of ill-treatment was sent to his family together with a ransom demand.
During the trial of the individuals suspected of involvement in the case Choc printed the photograph on the front cover of issue no. 120 and in four places inside the magazine, accompanied by other photographs and by an article several pages long. This was the June issue of the magazine but it was available to the public from 15 May 2009.
Following publication of the photograph, IH’s mother and sister brought proceedings against the publishing company for breach of privacy. On 20 May 2009 the Vice-President of the Paris tribunal de grande instance ordered the applicant company to withdraw the issue of the magazine from all sales outlets and to pay €20,000 euros to I.H.’s mother and €10,000 to each of his sisters in compensation (see “Photo d’Ilan Halimi: la justice interdit à la vente le magazine Choc“).
The Paris Court of Appeal upheld the main points of that judgment, but replaced the order to withdraw the issue from sale by an order requiring the photograph in question to be blacked out in all the magazines put on sale, on pain of a daily fine. The applicant company lodged an appeal on points of law which was dismissed by the Court of Cassation on 1 July 2010.
It was clear that the order of the domestic court was an interference with the applicant’s Article 10 rights which was prescribed by law and for a legitimate aim  to .
The issue was whether the interference was “necessary in a democratic society”. This involved applying the Axel Springer criteria for balancing Articles 8 and 10 .
First, there was no doubt that the article as a whole, which concerned a court case and crimes that had been committed, had contributed to a debate of general interest . However, the domestic court drew a distinction between the article and the photographs and the Court agreed with this distinction .
Second, as to the method of obtaining the information, it was important for journalists to respect the ethical principles governing their profession. The Court noted that the photograph, which had been taken in a private place by the torturers, was not intended for publication. The photograph had been published without the permission of I.H.’s relatives.
Third, as to the content form and impact of the impugned article the Court stressed that journalists were required to take into account the impact of the information and pictures which they published, especially where these were liable to adversely affect the private and family life of other persons, protected by Article 8 of the Convention. The Court agreed with the domestic courts that the publication constituted a serious infringement of the privacy of IH’s mother and sisters  to .
Fourth, as to the severity of the penalty, the Court considered that in merely ordering the photograph to be blacked out and taking no action in relation to the text of the report or the other photographs accompanying it, the Paris Court of Appeal had ensured respect for the publication as a whole.
The Court considered that, in view of the circumstances of the case and the interference with the private life of I.H.’s relatives, the penalty imposed had not been liable to have a chilling effect on freedom of expression.
As a result, the Court took the view that the restriction imposed by the domestic courts on the exercise of the publishing company’s rights had been based on relevant and sufficient reasons and had been proportionate to the legitimate aim pursued. It had therefore been necessary for in a democratic society. There had, therefore, been no violation of Article 10 of the Convention.
At first sight the case concerned a straightforward Article 10 issue. There was no doubt that the order of French court that a photograph should be “blacked out” was a serious interference with the Article 10 rights of the applicant.
The Court however assumed (without analysing the point) that the Article 8 rights of the mother and sisters of the photographed individual were engaged. This consistent with the approach taken in cases such Hachette Filipacchi Associés v. France.
In the light of the engagement of those Article 8 rights, the Court was able to treat the case as one requiring the application of the now familiar Axel Springer criteria for balancing Article 8 and 10 rights. The most important of those criteria – contribution to a debate of general interest – strongly favoured the applicant. The balance nevertheless came down on the other side. The crucial factor here was the impact on the deceased’s family. The Court gave little or no weight to the “editorial discretion” of the publishers.
This case suggests that where photographs of individuals who have died or suffered serious mistreatment are concerned, the media should carefully consider the impact of the publication on family members. In very serious cases this may be a decisive factor. In such cases, if the consent of the family is not obtained then publication is likely to be an unjustified interference with their rights even where the publication clearly contributes to a debate of general interest.
Finally, it is interesting to consider whether the mother and sisters of someone in the position of IH would have had a remedy under English law in similar circumstances. The decision of the Supreme Court in OPO v Rhodes ( UKSC 32) shows that the tort in Wilkinson v Downton would not be available. The boundaries of the tort of misuse of private information would have to be significantly expanded to cover such publication. It remains to be seen whether, in an appropriate case, the courts would be prepared to carry out such an expansion.
Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm