Information Note on the Court’s case-law 208

June 2017

Giesbert and Others v. France - 68974/11, 2395/12 and 76324/13

Judgment 1.6.2017 [Section V]

Article 10

Article 10-1

Freedom of expression

Conviction of newspaper for publishing criminal procedural documents before they had been read out in open court: no violation

Facts – The applicants, a magazine, its editor-in-chief and a journalist, were convicted of pub lishing two articles quoting documents relating to a set criminal proceedings before they were to be read out in open court in the high-profile case of Ms Bettencourt, one of the wealthiest persons in France, who had given B. a large number of money gifts totalling several hundred million euros. The national courts found that the impugned publications had infringed B.’s right to a fair trial with respect for the rights of the defence and the presumption of innocence and had violated section 38 of the 1881 L aw publishing the offence of publishing documents relating to criminal proceedings before they are read out in open court.

Law – Article 10: The impugned convictions amounted to an interference in the applicants’ exercise of their right to freedom of expre ssion as provided for by law with a view to protecting the reputation and rights of others and safeguarding the authority and impartiality of the judiciary.

The Court held that the criteria established in the Bédat v. Switzerland [GC] judgment (no. 56925/0 8, 29 March 2016, Information note 194 ), which should guide the domestic authorities of the States Parties to the Convention in balancing the rights secured under Article 10, on the one hand, and th e public and private interest covered by the secrecy of judicial investigations, on the other, were applicable mutatis mutandis to the present case.

(a) As regards how the applicants obtained the impugned information – Although Article 38 of the 1881 Law does not cover or penalise the circumstances under which a document pertaining to a set of proceedings was obtained but merely punishes the publication of such a document, the applicants should have known that the verbatim publication of any of the impugne d documents fell foul of the prohibition laid down in that article.

(b) As regards the content of the impugned articles – The articles had been slanted towards the truth of the charges against B., in breach of his right to the presumption of innocence.

(c) Contribution of the impugned articles to the public interest – The applicants’ criticised statements, which concerned public figures and the functioning of the judiciary, were made in the framework of a public-interest debate which transcended the mer e curiosity of a certain readership about an event or an anonymous trial. The public interest in receiving general information exceeded the bounds of the proceedings in question.

The decisions given by the domestic courts did not take into consideration th e potential contribution of the article published to the public debate and the public interest; the fact that they did not find such contribution sufficiently relevant was a discretionary matter for the courts.

(d) Influence of the impugned articles on th e conduct of the criminal proceedings

(i) As regards the articles of 10 December 2009 and 4 February 2010 in relation to B. – In view of the complex questions which the judicial authorities had to determine as regards, on the one hand, Ms Bettencourt’s vu lnerability, and, on the charges of abuse of weakness against B., the publication of procedural documents in biased articles comprised risks of disrupting the proper conduct of the proceedings and jeopardising the defendant’s right to a fair trial.

(ii) A s regards the article of 4 February 2010 concerning Ms Bettencourt – The interlocutory proceedings resulted in a finding that she had been wronged by the publication of the article because it was liable to infringe her rights by presenting her, before the criminal case had been examined by the criminal court, as a weakened, easily manipulated woman, which she denied. Given that Ms Bettencourt had filed submissions as a voluntary intervener with a subsidiary application to join the proceedings before the cri minal court as a civil party, and in view of the content of the information provided for the magazine’s readership, the impugned article could have had a negative effect on the proper administration of justice.

(e) As regards infringement of private life – The domestic courts found no infringement of B.’s and Ms Bettencourt’s private lives.

(f) As regards the proportionality of the penalty imposed – The applicants had been ordered to pay an advance of EUR 13,000, to publish the court ruling in two issues of their magazine and to pay EUR 1 in respect of non-pecuniary damages. Those penalties could not be considered excessive or liable to have a deterrent effect on the exercise of freedom of the media.

(g) Conclusion – The reasons given by the domestic cour ts to justify their interference with the applicants’ right to freedom of expression in the framework of their conviction had been relevant and sufficient. In particular, the applicants’ and the public interest in communicating and receiving information on a matter of public interest has not been such as to override the considerations set out by the domestic courts regarding the consequences for the protection of the rights of others and the proper administration of justice. Therefore, the convictions had m et a social need compelling enough to override the public interest in the freedom of the press, and could not be considered disproportionate to the legitimate aims pursued.

Conclusion : no violation (unanimous).

(See also Du Roy and Malaurie v. France , 34000/96 , 3 October 2000; Tourancheau and July v. France , 53886/00 , 24 November 2005; and Dupuis and Others v. France , 1914/02, 7 June 2007, Information Note 98 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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