Couderc and Hachette Filipacchi Associés v. France [GC]

Information Note on the Court’s case-law 190

November 2015

Couderc and Hachette Filipacchi Associés v. France [GC] - 40454/07

Judgment 10.11.2015 [GC]

Article 10

Article 10-1

Freedom to impart information

Finding of liability against publishers of article and photographs revealing existence of monarch’s secret child: violation

Facts – On 3 May 2005 the British newspaper the Daily Mail published an article containing disclosures by Ms C. with regard to her son, claiming that his father was the reigning prince of Monaco. The article referred to a forthcoming publication in Paris Match and set out its core elements, including photographs, one of which showed the Prince with the child in his arms. The interview with Ms C. and the photographs in question were also published in the German weekly magazine Bunte dated 4 May 2005.

The applicants are, respectively, the publication director of the weekly magazine Paris Match and the company which publishes the magazine. On 6 May 2005 Paris Match published an article in which Ms C. gave details about how she had met the Prince, their meetings, their intimate relationship and feelings, the way in which the Prince had reacted to the news of Ms C.’s pregnancy and his attitude on meeting the child. The Prince brought proceedings against the applicants, seeking compensation for invasion of privacy and infringement of his right to protection of his own image. The French courts granted his request, awarding him EUR 50,000 in damages and ordering that details of the judgment be published across one third of the magazine’s front cover.

In a judgment of 12 June 2014 (see Information Note 175), a Chamber of the Court concluded, by four votes to three, that there had been a violation of Article 10. On 13 October 2014 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 10: The judgment against the applicants amounted to interference with their right to freedom of expression. That interference had been prescribed by law and had pursued a legitimate aim, namely the protection of the reputation and rights of others. It remained to be determined whether it was necessary in a democratic society.

(a) Contribution to a debate on a matter of general interest – The public interest could not be reduced to the public’s thirst for information about the private life of others, or to the reader’s wish for sensationalism or even, sometimes, voyeurism. Yet the interview with Ms C. contained numerous details about the Prince’s private life and his real or supposed feelings which were not directly related to a debate of public interest. However, it was necessary at the outset to point out that although a birth was an event of an intimate nature, it did not come solely within the private sphere of the persons concerned by it, but also fell within the public sphere, since it was in principle accompanied by a public statement (the civil-status document) and the establishment of a legal parent-child relationship. Thus, the purely family and private interest represented by a person’s descent was supplemented by a public aspect, related to the social and legal structure of kinship. A news report about a birth could not therefore be considered, in itself, as a disclosure concerning exclusively the details of the private life of others, intended merely to satisfy the public’s curiosity. In addition, at the material time this child’s birth had not been without possible dynastic and financial implications: the question of legitimation by marriage could be raised, even if such an outcome was improbable. Indeed, the consequences of the birth on the succession had been mentioned in the article. The impugned information had not therefore been without political import, and could have aroused the interest of the public with regard to the rules of succession in force in the Principality (which prevented children born outside marriage from succeeding to the throne). Likewise, the attitude of the Prince, who had wished to keep his paternity a secret and refused to acknowledge it publicly, could, in a hereditary monarchy whose future was intrinsically linked to the existence of descendants, also be of concern to the public. This was equally true with regard to his behaviour in respect of the child’s mother and the child himself: this information could have provided insights into the Prince’s personality, particularly with regard to the way in which he approached and assumed his responsibilities. In this context, it was important to reiterate the symbolic role of a hereditary monarchy, in which the person of the Prince and his direct line were also representative of the continuity of the State. Furthermore, the press’s contribution to a debate of public interest could not be limited merely to current events or pre-existing debates. Admittedly, the press was a vector for disseminating debates on matters of public interest, but it also had the role of revealing and bringing to the public’s attention information capable of eliciting such interest and of giving rise to such a debate within society. Accordingly, the national courts ought to have assessed the publication as a whole in order to determine its subject-matter accurately, rather than examining the remarks concerning the Prince’s private life out of their context. However, they had refused to take into consideration the interest that the article’s central message could have had for the public, and instead concentrated on the details about the couple’s intimate relationship. In so doing, they had deprived the public-interest justification relied upon by the applicants of any effectiveness.

(b) How well known was the person concerned and what was the subject of the report? – The domestic courts ought to have taken into account the potential impact of the Prince’s status as Head of State, and to have attempted, in that context, to determine what belonged to the strictly private domain and what fell within the public sphere. Yet, although they reiterated that an exception could be made to the principle of protection of private life whenever the facts disclosed could give rise to a debate on account of their impact given the status or function of the person concerned, they had drawn no conclusion from that consideration.

In addition, the Prince’s private life was not the sole subject of the article, but it also concerned the private life of Ms C. and her son. Ms C. had certainly not been bound to silence and had been free to communicate in respect of elements relating to her private life. In this regard, it could not be ignored that the disputed article was a means of expression for the interviewee and her son. Thus, the interview also concerned competing private interests. Admittedly, Ms C.’s right to freedom of expression for herself and her son was not directly in issue in the present case; nonetheless, the combination of elements relating to Ms C.’s private life and to that of the Prince had to be taken into account in assessing the protection due to him.

(c) Prior conduct of the person concerned – The material in the case file was not in itself sufficient to enable the Court to examine the Prince’s previous conduct with regard to the media.

(d) Means by which the information was obtained and its veracity – In a decision which appeared to have been personal, deliberate and informed, Ms C. herself had contacted Paris Match. The veracity of the statements with regard to the Prince’s paternity had not been contested by him, and he himself had publicly acknowledged it shortly after publication of the impugned article. As to the photographs which illustrated the interview, they had been handed over voluntarily and without charge to Paris Match. They had not been taken without his knowledge or in circumstances showing him in an unfavourable light.

(e) Content, form and consequences of the impugned article – The duties and responsibilities of journalists implied that they were required to take into account the impact of the information that they intended to publish. In particular, certain events enjoyed particularly attentive protection under Article 8 of the Convention and ought therefore to lead journalists to show prudence and caution in covering them. The tone of the interview with Ms C. appeared to be measured and non-sensationalist. Her remarks were recognisable as quotations and her motives were also clearly set out for the readers. Equally, readers could easily distinguish between what was factual material and what concerned the interviewee’s perception of the events, her opinions or her personal feelings. Admittedly, the interview had been placed in a narrative setting accompanied by graphic effects and headlines which were intended to attract the reader’s attention and provoke a reaction. However, this narrative presentation did not distort the content of the information and did not deform it, but had to be considered as its transposition or illustration. The magazine could not be criticised for enhancing the article and striving to present it attractively, provided that this did not distort or deform the information published and was not such as to mislead the reader.

Moreover, while there was no doubt in the present case that these photographs fell within the realm of the Prince’s private life and that he had not consented to their publication, their link with the impugned article was not tenuous, artificial or arbitrary. Their publication could be justified by the fact that they added credibility to the account of events. Indeed, Ms C. had at her disposal no other evidence which would have enabled her to substantiate her account. In consequence, although publication of these photographs had had the effect of exposing the Prince’s private life to the public, they had supported the account given in the article.

Lastly, with regard to the consequences of the disputed article, shortly after the article was published the Prince had publicly acknowledged his paternity. These consequences had to be put into perspective, in the light of the articles which had previously appeared in foreign newspapers. However, in the present case the domestic courts did not appear to have evaluated the consequences in the wider context of the international media coverage already given to the events described in the article. Thus, they had attached no weight to the fact that the secrecy surrounding the Prince’s paternity had already been undermined by the previous articles in other media.

(f) The severity of the penalty – The penalties inflicted on the applicant company, namely EUR 50,000 in damages and an order to publish a statement detailing the judgment, could not be considered insignificant.

In the light of all of these considerations, the arguments advanced with regard to the protection of the Prince’s private life and of his right to control his own image, although relevant, could not be regarded as sufficient to justify the interference in issue.

Conclusion: violation (unanimously).

Article 41: claim in respect of pecuniary damage dismissed.

(See also Von Hannover v. Germany (no. 2) [GC], 40660/08 and 60641/08, and Axel Springer AG v. Germany [GC], 39954/08, judgments of 7 February 2012, summarised in Information Note 149)

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This summary by the Registry does not bind the Court.

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