Information Note on the Court’s case-law No. 147
December 2011
Mor v. France - 28198/09
Judgment 15.12.2011 [Section V]
Article 10
Article 10-1
Freedom of expression
Lawyer’s conviction for comments to press on confidential expert report prepared in criminal investigation: violation
Facts – In November 1998 the applicant, a lawyer, lodged a criminal complaint alleging manslaughter and an application to join the proceedings as a civil party on behalf of the parents of a twelve-year-old child who had died from an illness contracted after being vaccinated against hepatitis B. A judicial investigation was opened. In November 2002 a doctor specialising in drug safety and pharmacoepidemiology submitted a 450-page expert report to the investigating judge. On 14 November 2002 the daily newspaper Le Parisien published an article with the heading “B vaccine: the report that points the finger”, in which it described the report as “explosive” and “damning” for the French health authorities. The applicant later made statements to the press in reply to questions from journalists who had already seen the expert report. In September 2003 she was charged with breaching the confidentiality of the investigation and a breach of professional confidence. In May 2007 the Criminal Court found the applicant guilty of a breach of professional confidence but dispensed her from serving sentence. It ordered her to pay one euro in damages to the claimant company. The appeals lodged against that decision were unsuccessful.
Law – Article 10: The applicant had been convicted for having made comments, in her capacity as the lawyer of a number of victims who had joined the proceedings as civil parties, on the expert report, although the latter had been covered by the confidentiality of the investigation and the judicial investigation had been in progress. Her criminal conviction constituted interference with the exercise of her right to freedom of expression. The interference had been prescribed by the law, which made it an offence for persons acting in their capacity as lawyers to disclose confidential information. Lawyers were required to respect the confidentiality of criminal investigations by refraining from communicating any information from the file, except to their clients for the purposes of the latter’s defence, and from publishing letters or other documents concerning an ongoing investigation. As to the aim of the interference, they lent special protection to the confidentiality of the investigation in view of what was at stake in criminal proceedings with regard to both the administration of justice and the right of persons under investigation to be presumed innocent.
The applicant had not been penalised for divulging the expert report to the media but for having disclosed information contained therein. When she had replied to the journalists’ questions the press had already been in possession of all or part of the expert report. The applicant’s comments had formed part of a debate of general interest. The facts had been of direct relevance to a public-health issue and had concerned the liability of pharmaceutical laboratories and representatives of the State. The issue had therefore been of undoubted interest to the general public. In that connection there was little scope under Article 10 § 2 for restrictions on debate on questions of public interest. The disclosure of information to the media was apt to safeguard the public’s right to be informed of the activities of the judicial authorities. With the exception of the allegations that the expert had been subjected to pressure, the applicant had confined herself to commenting on information already widely disseminated in the article preceding her interview which had been taken up in other sections of the media. However, while the fact that persons not involved in the criminal proceedings – in this case, journalists – had knowledge of information covered by the rules of professional confidence necessarily undermined its confidentiality, this did not in itself dispense lawyers from their obligation to exercise caution with regard to the secrecy of ongoing investigations when making comments in public. Nevertheless, in view of the media coverage of the case owing to the seriousness of the facts and the persons implicated, the Court queried the interest in prohibiting the applicant from commenting on information already known to the journalists. Accordingly, the need to protect confidential information did not constitute sufficient grounds for finding the applicant guilty of a breach of professional confidence. In particular, the case-law of the Court of Cassation, according to which the fact that other persons had knowledge of information covered by professional confidence did not mean that the information was not confidential and secret, did not dispense the domestic courts from giving relevant and sufficient reasons for any infringement of a lawyer’s right to freedom of expression. The protection of that freedom had to take account of the provision made for exceptional cases in which the exercise of the rights of the defence might make a breach of professional confidence necessary.
As to the allegations that pressure had been exerted on the expert, which had not been mentioned in the article in question, the applicant’s comments had related more to the conditions in which the expert had had to compile the report than to the content of the report itself. The Court accepted the applicant’s argument that she had wished to alert the public and comment on the content of the report in the interests of the defence, given that the families of the victims, whom she was representing, had a clear interest, both for their defence and for the dispassionate and independent investigation of their complaint, lodged four years earlier, in informing the public of any external pressure exerted on the expert, the importance of whose findings was not in dispute in the instant case. The applicant’s statements could not be said to have been liable to hamper the proper administration of justice or to breach the right of those implicated to be presumed innocent. On the contrary, giving an interview to the press was a legitimate part of her clients’ defence, given that the case had aroused interest in the media and among the general public.
The applicant had been dispensed from sentence and had merely been ordered to pay a symbolic sum of one euro in damages. Although that had been the most lenient measure possible, it nonetheless constituted a criminal sanction. However, that did not suffice in itself to justify the interference.
Accordingly, the interference complained of had not responded to a pressing social need and had been disproportionate in the circumstances of the case.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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