In the case of Giesbert v France ( ECHR 504, 1 June 2017)(French only) the Fifth Section of the Court of Human Rights held that Court orders made against the magazine, Le Point, sanctioning the publication of criminal court documents in the high profile “Bettancourt” case did not violate Article 10 of the Convention.
The applicants were the editor of the weekly French magazine, Le Point, a journalist and the publisher. On 10 December 2009 Le Point published a 4-page article concerning gifts worth one billion euros from Liliane Bettencourt, one of the wealthiest individuals in France, to her friend François-Marie Banier, a writer and photographer (referred to in the judgment as “B”).
The article contained comments in quotation marks, presented as excerpts from statements made to the investigators. The article also reproduced statements by Mme Bettencourt under the heading “Exclusive: what Liliane Bettencourt actually told the police”. On 4 February 2010 Le Point published an article entitled “The Bettencourt affair: how to earn a billion (without too much trouble)”. That article reproduced lengthy excerpts from statements made by persons working at Mme Bettencourt’s home, which had been recorded during the preliminary inquiry.
On 11 February 2010, further to the publication of that article, Mme Bettencourt and M Banier brought urgent proceedings against the applicants before the Paris tribunal de grande instance (“TGI”). Mme Bettencourt complained that the reproduction of procedural documents relating to the preliminary inquiry violated section 38 of the 29 July 1881 Freedom of the Press Act and Article 9 of the Civil Code guaranteeing respect for private life.
The court ordered the applicants to pay her a sum of €3,000 euros, together with a further €3,000 in respect of costs and expenses. The applicants appealed against that decision. The Paris Court of Appeal upheld the substance of the decision, increased the award to €10,000. The Court of Cassation dismissed the applicants’ appeal on points of law.
As regards M Banier’s complaint, the TGI held that the publication of the article had infringed his rights to a fair trial and to the presumption of innocence. The applicants were ordered to pay him an advance of €3,000 on the compensation to be awarded in respect of non-pecuniary damage, and an equivalent amount in respect of costs and expenses.
The applicants appealed. The Paris Court of Appeal upheld the substance of that decision. The Court of Cassation dismissed the applicants’ appeal on points of law.
On 9 March 2010 M. Banier brought proceedings against the applicants before the TGI, claiming compensation for the damage caused by the publication of the articles on 10 December 2009 and 4 February 2010 in breach of section 38 of the 1881 Act. The TGI dismissed all his claims. In February 2012 the Court of Appeal set aside the judgement, ruled that the impugned publications had infringed his right to a fair trial with respect for his defence rights and the presumption of innocence and violated section 38 of the 1881 Act, and ordered the applicants to pay €1 in compensation for each publication and €6,000 in respect of costs and expenses. The Court of Cassation dismissed the applicants’ appeal on points of law.
From June 2010 onwards the developments and the political/financial ramifications of the Bettencourt affair had attracted intensive media coverage. In December 2011 M. Banier was placed under formal investigation for exploitation of weakness, and on 28 May 2015 he was found guilty and sentenced to three years’ imprisonment, of which he had to serve thirty months, a fine of €350,000, and €158 million in respect of damages payable to Mme Bettencourt. The Bordeaux Court of Appeal upheld the conviction.
There had been an interference with the Article 10 rights of the applicants but this was clearly “prescribed by law”. The provisions of section 38 of the 1881 Act was sufficiently foreseeable as required by Article 10 of the Convention (see Tourancheau and July, 24 November 2005, §§ 59 and 60). It emphasised that the journalists, Mr Giesbert and Mr Gattegno, were experienced professionals and had been well placed to weigh up the risks facing them 
The interference with the applicants’ Article 10 rights had been intended to protect M.Banier’s right to a fair trial, with respect for the presumption of innocence, and to protect Mme Bettencourt’s rights by guaranteeing proper administration of justice and was therefore for the legitimate aim of protecting the reputation and rights of others 
When considering the “necessity of the interference in a democratic society” the Court applied the criteria set out in Bédat v Switzerland ( ECHR 313) . Although this was not a prosecution for breaching the secrecy of the investigation, the issues as to the balancing of Articles 6 and 8 were similar.
The Court considered the six criteria set out in Bédat as follows
(i) How the applicant came into possession of the information at issue
The Court noted that M. Giesbert and M. Gattegno must have been aware of the origin of the documents reproduced in their articles and of the confidentiality of the information published. Section 38 of the 1881 Act targeted and punished not the conditions under which a procedural
document had been obtained, but the mere fact that it had been published. The applicants must have been aware that the publication of contravened the statutory provisions 
(ii) The Content of the impugned article
As regards the content of the articles, in relation to the first article, even though the journalist had been careful not to draw any explicit conclusions in the article, its whole thrust was that M. Banier as guilty. The article had provided several quotations to highlight the contradictions and weaknesses of his statements and to provide the public with biased information. In relation to the second article, there was no reason for the Court to substitute its opinion for that of the Court of Appeal 
(iii) The Contribution of the impugned article to a public-interest debate
The Court considered that the impugned statements by the applicants, which had concerned public figures and the functioning of the judiciary, had been part of a public-interest debate which went beyond the mere curiosity of a
particular readership about a given event or an anonymous trial .
The domestic courts could have provided more explicit reasons for its exercise of balancing the interests of Mme Bettencourt, of M Banier. and of the proper administration of justice against the general interest argument adduced by the applicants. Nevertheless, it considered that the fact that the domestic courts had not emphasised the potential influence of the articles on the public debate and the public interest fell within their legitimate margin of appreciation.
(iv) Influence of the impugned article on the criminal proceedings
The Court reiterated the importance of journalists who write articles about ongoing criminal proceedings ensuring that that the chances of a person enjoying a fair trial are not reduced .
In relation to M. Banier, Publishing such articles – on 10 December 2009, the day before his appearance at the Nanterre Criminal Court, and on 4 February 2010, two months before the scheduled hearing – was liable to heavily influence the conduct of the proceedings and affect potential witnesses, and indeed the judges. The Court reiterated that publishing a biased article could affect the objectivity of the trial court .
The Court did not agree with the applicants that the extensive media coverage of the case had vindicated the verbatim publication of numerous lengthy excerpts from procedural documents. Given the complex issues before the courts, the publication of quotations from those documents in biased articles had risked disrupting the proper conduct of the proceedings and jeopardising M. Banier’s right to a fair trial. The publishing ban set out in section 38 of the 1881 Act was limited in scope and duration.
The applicants, who were press professionals, had been in a position to obviate such risks without affecting the substance of the information which they had wished to disseminate .
The articles could also have had negative repercussions on the administration of justice in relation to Mme Bettencourt 
(v) Infringement of accused’s private life
Neither M. Banier nor Mme Bettencourt relied on infringement of their privacy in the national courts.
(vi) Proportionality of the penalty
Finally, the Court held that the penalties imposed on the applicants could not be deemed excessive or capable of having a chilling effect on the exercise of freedom of the media .
The Court concluded that the reasons given by the domestic courts for finding against the applicants and interfering with their right to freedom of expression had been appropriate and sufficient for the purposes of Article 10 of the Convention.
“the interest of the applicants and the public in communicating and receiving information on a matter of general interest was not such as to prevail over the considerations invoked by the national courts as to the consequences for the protection of the rights of others and the proper administration of justice” .
There had therefore been no violation of Article 10.
This is a strong reaffirmation by the Court of Human Rights of the importance of ensuring that the reporting of criminal proceedings does not prejudice the fair trial rights of those involved. Although the article contributed to a debate of public interest and there were no privacy rights relied on, the Court accepted that the publication of extracts from prosecution statements in a context implying guilt was properly sanctioned by the domestic courts.
From an English perspective this decision is unsurprising – publication of such material in relation to an active criminal prosecution would constitute a contempt of Court. However, the approach to pre-trial publication is different in civil law systems and the decision will be controversial. In particular, the Court reached its decision by applying the “criteria” for balancing Articles 6 and 10 set out in the much criticised decision in Bédat v Switzerland. This is a problematic extension of Article 6 obligations to private parties (see Dirk Voorhoof’s Inform post) but was applied without comment or discussion in this case.
Even applying the Bédat criteria, the applicants’ case appeared to be a strong one. Given the public interest in the case and the absence of reliance on privacy rights it might be thought that the balance would have been struck in a different way on the facts. It will be interesting to see whether the applicants seek to refer the case to the Grand Chamber.
Hugh Tomlinson QC is a member of Matrix Chambers and an editor of Inforrm