Information Note on the Court’s case-law No. 121
July 2009
Hachette Filipacchi Associés (Ici Paris) v. France - 12268/03
Judgment 23.7.2009 [Section V]
Article 10
Article 10-1
Freedom of expression
Award of damages against magazine for publishing information that had been freely divulged and made public by a singer: violation
Facts: The applicant company, Hachette Filipacchi Associés, publishes the weekly magazine Ici Paris, which published an article about singer Johnny Hallyday, illustrated by four photographs, one showing him on stage and the others being advertising material for products with which he had allowed his name and image to be associated. The article focused on financial difficulties which had allegedly obliged the singer to cash in on his image, with little hope of repaying his debts. The singer took action against the applicant company, which was ordered, on appeal, to pay 20,000 euros in damages.
Law: The fact that the applicant company was ordered to pay damages amounted to an interference with its freedom of expression. The interference had been prescribed by law and there were legal precedents concerning the right to one’s image of which the applicant company, an informed professional publisher in the press sector, must have been aware. Furthermore, the interference had pursued a legitimate aim, namely the protection of the rights of others, in this case the plaintiff’s right to respect for his private life. As to whether it had been proportionate to the legitimate aim pursued, the offending article and the accompanying photos, which focused on the singer’s alleged financial difficulties and the way he exploited his name and image, could not be regarded as having taken part in or contributed to a debate on a matter of general interest to the community in keeping with the Court’s case-law. That being so, the respondent State enjoyed a broader margin of appreciation. The national courts had found that the applicant company had violated the plaintiff’s right to his image on the grounds that the publication of the photographs without his consent had not been consistent with the purpose of advertising for which he had allowed his image to be used. The misuse of a photograph for a purpose other than that for which a person had specifically authorised its reproduction could be considered sufficient grounds for restricting freedom of expression. However, that finding alone did not suffice to justify the award against the applicant company. Particular importance had to be attached to the nature of the pictures published, which had been purely promotional. This case differed from those previously examined by the Court in which the offending photographs had been obtained fraudulently or taken in secret, or had revealed details of people’s private lives by invading their privacy. In this case the pictures had not been altered or their commercial character changed, as they had been used to illustrate, albeit in a critical manner, the news that the singer was selling his image for use by a variety of consumer products in order to satisfy his financial needs. The information about the lavish way in which he managed and spent his money did not fall within the “inner circle” of private life protected by Article 8 of the Convention. The prior disclosure by Mr Hallyday himself of the relevant information was an essential element of the Court’s analysis of the applicant company’s interference with the singer’s private life. Its disclosure had weakened the degree of protection to which he was entitled as regards his private life, as it was by then widely known news. This had not been taken into account in the determination of the applicant company’s liability. Yet it was a decisive factor in assessing the balance to be struck between the applicant company’s freedom of expression and the singer’s right to respect for his private life. Lastly, although the general tone of the article might appear to have been negative towards Mr Hallyday, it had not contained any offensive expressions or harmful intent towards him. The applicant company had thus used the degree of exaggeration and provocation permitted in a democratic society without overstepping the limits attached to freedom of the press. In conclusion, although the reasons given by the domestic courts appeared relevant, they did not suffice to show that the impugned interference with the applicant company’s right had been necessary in a democratic society. It was therefore not necessary for the Court to examine the nature and quantum of the award in order to measure the proportionality of the interference.
Conclusion: violation (unanimously).
Article 41 – EUR 26,000 in respect of pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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