Information Note on the Court’s case-law No. 117
March 2009
Société de conception de presse et d'édition et Ponson v. France - 26935/05
Judgment 5.3.2009 [Section V]
Article 10
Article 10-1
Freedom of expression
Conviction of magazines for illegal advertising of tobacco: no violation
[This summary also covers the Judgment in the case of Hachette Filipacchi presse automobile et Dupuy v. France, no. 13353/05, 5 March 2009]
Facts: The cases concern the conviction of the publishers of two magazines – Action Auto Moto in the first case and Entrevue in the second – and their publication directors.
In the first case the magazine Action Auto Moto published a photograph of Formula 1 racing driver Michael Schumacher celebrating his victory on the podium of the Australian Grand Prix, sporting the name of the M. cigarette brand, which sponsors his racing team, on his sleeve. On the right sleeve of another driver’s suit the name of another brand of cigarettes – W – was visible. Under an anti-tobacco and anti-alcohol law the court sentenced the publication director to a EUR 30,000 fine for indirect or unlawful advertising of tobacco products. The publishing company was declared jointly and severally liable for the full amount of the fine. The sentence was upheld on appeal and the Court of Cassation declared a subsequent appeal on points of law inadmissible.
In the second case the magazine Entrevue published an article on money in sport. It featured a photograph of Michael Schumacher sporting the logo of a brand of cigarettes (M.). Another photograph showed Michael Schumacher’s helmet in the M. cigarette brand’s colours, with the following caption: “F1 Michael Schumacher: EUR 65 M/year (430 million francs), including salary of EUR 34 M and the remainder from advertising contracts...”. Furthermore, the penultimate page of the magazine showed a series of satirical photomontages, one of which featured two packets of M. brand cigarettes cut out to represent two human figures engaged in the act of sodomy, with the caption “Beware: smoking causes anal cancer”. The court found that the photomontage concerned did not constitute pro-tobacco propaganda or advertising, but sentenced the publication director to a EUR 20,000 fine for direct advertising or propaganda in favour of tobacco or tobacco products because of the photographs published. The publishing company was declared jointly and severally liable. The Court of Appeal upheld the sentence imposed by the court below and also found the accused guilty of unlawful advertising of tobacco products and the applicant company civilly liable on account of the satirical photomontage. The Court of Cassation dismissed an appeal on points of law.
Law: Article 10 – In neither case was the publication concerned strictly speaking a “trade” magazine, so the margin of appreciation enjoyed by the State was limited. In the first case the offending publication focused on the motor vehicle trade, but from a news angle. In the second case the offending photographs of sporting events were part of a news article about earnings in sport. The question was whether the impugned measures were proportionate to the aim pursued.
The applicants had been sentenced for publishing photographs showing a cigarette manufacturer’s logo and, in the second case, a photomontage featuring the same brand of cigarettes. The restriction of cigarette and tobacco-related advertising was an essential part of a broader strategy in the fight against the social evil of smoking. Fundamental considerations of public health, on which legislation had been enacted in France and the European Union, could prevail over economic imperatives and even over certain fundamental rights such as freedom of expression. There was a European consensus as to the need for strict regulation of tobacco advertising, and a general trend towards such regulation could now be seen worldwide. The Court did not have to take into account the actual impact on tobacco consumption of a ban on advertising, including indirect advertising. The fact that the offending publications were regarded as capable of inciting people, particularly young people, to consume such products was, for the Court, a “relevant” and “sufficient” reason to justify the interference.
In the first case there was no doubt that the aim of the photograph was to advertise brands of cigarettes, amongst other products, and even if the impugned logos took up very little space, they were easily identifiable and directly associated with success in sport. In the second case the logos of cigarette brands took up more space in the photographs and were particularly visible and directly associated with success in sport. The Court considered that in both cases the applicants could have blurred the offending logos, a technically simple process, without altering the substance of the photographs or affecting the accuracy of the information imparted. Being media professionals, the applicants could easily have made these slight alterations. Moreover, these magazines’ readership included young people and it was necessary to take into account the impact of the logos on these readers, who were particularly attentive to success in sport or finance. Lastly, while the amounts the applicants were ordered to pay were certainly not negligible, in assessing whether they were harsh they had to be compared with the revenue of high-circulation magazines such as those concerned here. Bearing in mind how important it was to protect public health, the pressing need to take steps to protect our societies from the scourge of smoking, and the existence of a consensus at the European level regarding the prohibition of advertising in respect of tobacco products, the restrictions imposed on the applicants’ freedom of expression in the instant case had answered a pressing social need and had not been disproportionate to the legitimate aim pursued.
Conclusion: no violation (unanimously).
Article 14 in conjunction with Article 10 – In both cases the applicants challenged Article L. 3511-5 of the Public Health Code, which authorised the audiovisual media to broadcast motor-sports competitions in France – without concealing the cigarette brands displayed on the cars, drivers’ suits or tracks – when the events took place in countries where tobacco advertising was authorised. While it was not yet feasible, by technical means, to hide lettering, logos or advertisements on footage used by broadcasters, it was possible to refrain from taking photographs of such symbols, or to conceal or blur them, on the pages of magazines. The print media had the necessary time and technical facilities to modify their pictures and blur any logos suggestive of tobacco products. The Court of Cassation had in fact confirmed that the live broadcasting of a race was the only exception to the ban on the indirect advertising of tobacco products. Thus the audiovisual media and the print media were not in similar or comparable situations.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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