Information Note on the Court’s case-law No. 98
June 2007
Dupuis and Others v. France - 1914/02
Judgment 7.6.2007 [Section III]
Article 10
Article 10-1
Freedom of expression
Freedom to impart information
Convictions of journalists for using and reproducing material from a pending criminal investigation in a book: violation
Facts: The applicants are two French journalists and a publishing company. An “anti-terrorist unit” at the Elysée Palace set up by the French President's Office in the 1980s engaged in telephone tapping and bugging. In the early 1990s the press published a list of people who had been placed under surveillance, including journalists and lawyers, arousing considerable media interest in what came to be known as the “Elysée eavesdropping operations” (“lesécoutes de l'Elysée”).
A judicial investigation was opened in the course of which G.M., deputy director of the President's private office at the material time, was placed under formal investigation for breach of privacy. While the investigation was still in progress the applicant publishing company published the book “The Ears of the President” (Les Oreilles du Président), which the other two applicants had written, describing the workings of the surveillance operations.
G.M. lodged a complaint: the book reproduced official records of statements made before the investigating judge and facsimiles of phone-taps which were identical to documents in the file concerning his case, whereas such evidence was protected by the confidentiality of the investigation. The applicants denied having obtained their information illegally; they refused to reveal their sources and claimed that the documents concerned had come into the journalists' possession well before the investigation started. The court found that the documents concerned came from the judicial investigation file, which was only accessible to people bound by the confidentiality of the investigation or by professional confidentiality; they had therefore been communicated in breach of the confidentiality of the investigation or professional confidentiality, and the applicants, as experienced journalists, could not have been unaware of the fact that the documents had come to them illegally.
Because they had used and reproduced material from the judicial investigation file in their book, the applicants were found guilty of the offence of using information obtained through a breach of the confidentiality of the investigation or of professional confidentiality. They were ordered to pay a fine and also to pay G.M. damages; the applicant company was found to be civilly liable. The book continued to be published and no copies were seized. The Court of Appeal upheld the judgment. The Court of Cassation rejected the applicants' appeal.
Law: The conviction was prescribed by the French Criminal Code and its aim had been to protect G.M.'s right to a fair trial, with due respect for presumption of innocence, and to avoid any outside influence on the course of justice.
As to whether that interference was necessary in a democratic society, the subject of the book had concerned a debate which was of considerable public interest. It had made a contribution to an affair of state which was of interest to public opinion, and provided certain information and considerations about the numerous prominent figures whose telephones had been illegally tapped, about the conditions in which the operations had taken place and about the identity of the instigators.
While G.M., at the time one of the French President's main aides, was not strictly speaking a politician, he nevertheless had all the characteristics of an influential public figure, clearly involved in political life at the highest level of the executive.
The applicants' book had divulged information of interest to the public concerning an illegal telephone tapping and recording system targeting numerous public figures and organised at the highest level of the State. The public had a legitimate interest in the provision and availability of information.
On the other hand it was legitimate to want to grant special protection to the confidentiality of the judicial investigation, in view of the stakes involved in criminal proceedings, both for the administration of justice and for the right of persons under investigation to be presumed innocent.
However, at the time when the applicants' book was published, in addition to there being wide media coverage of the case, it was already well known that G.M. had been placed under investigation in this case, in connection with a pre-trial investigation which had started about three years earlier and would eventually lead to his conviction and suspended prison sentence some ten years after the offending book was published. Moreover, the Government had failed to establish how the disclosure of confidential information could have had a negative impact on G.M.'s right to the presumption of innocence or on his conviction and sentence almost ten years later.
After the publication of the book and while the judicial investigation was ongoing, G.M. had regularly commented on the case in the press, so protecting the information on account of its confidentiality had not been an overriding requirement. The Court questioned whether there was still an interest in keeping information confidential when it had already been at least partly made public and was likely to be widely known, having regard to the media coverage of the case, both because of the facts and because of the celebrity of many of the victims of the surveillance.
It was necessary to take the greatest care in assessing the need to punish journalists for using information obtained through a breach of the confidentiality of an investigation or of professional confidentiality when they were contributing to a public debate of such importance. The applicants had acted in accordance with the standards governing their profession as journalists.
As to the punishment incurred, no order to destroy or seize the book had been issued and its publication had not been prohibited. The fine, however, although fairly moderate, and the additional damages, did not appear justified.
Conclusion: violation (unanimously) and no separate issue under Article 6 § 2.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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