Information Note on the Court’s case-law 193
February 2016
Société de Conception de Presse et d’Édition v. France - 4683/11
Judgment 25.2.2016 [Section V]
Article 10
Article 10-1
Freedom of expression
Court order to black out photograph of captive and tortured person in magazine on sale: no violation
Facts – A magazine published by the applicant company printed a photograph of a man wearing shackles and showing visible signs of ill-treatment, together with an article on the opening of the criminal trial of his torturers. The applicant company was sued by the family of the victim, who had died in the meantime from his injuries, and was ordered, on pain of a penalty for non-compliance, to black out the photograph in question in all the copies of the magazine on sale or in circulation. The company was also ordered to pay EUR 20,000 in compensation to the victim’s mother and EUR 10,000 to each of his sisters. It lodged an appeal against that decision, which was dismissed.
Law – Article 10: The article, which concerned a court case and crimes that had been committed, had concerned information apt to contribute to a debate of general interest. However, the subject of the photograph had been an ordinary member of the public. Furthermore, there had been no reason why the domestic courts should not make a distinction, as they had done, between publication of the article and of the photograph.
As to the means by which the photograph had been obtained, the courts had noted that it had not been taken in a public place but rather by the victim’s torturers while he was being held captive, that it had belonged to the family and to the investigation file in the case, that it had not been intended for publication and that it had been published without the permission of the deceased’s relatives. The courts also rejected the argument that the picture had previously been shown – of necessity fleetingly – during a television programme. In the Court’s view, therefore, the photograph had not been public.
With regard to the content, form and repercussions of publication, the Court also agreed with the domestic courts’ findings that the photograph in question, which was suggestive of submission and torture, infringed human dignity and that its publication had shown a grave disregard for the grief of the victim’s mother and sisters, in other words for their privacy. The passage of time was not a relevant argument in this regard: not only had the photograph never previously been published, its publication also coincided with the opening of the trial of the perpetrators, whom the deceased’s relatives would have to face. Given that the victim’s death had occurred in circumstances that were particularly violent and traumatic for his family, the journalists had had a duty to display prudence and care. The publication of the photograph, on the cover and in four places inside a magazine with a very wide circulation, had exacerbated the trauma experienced by the relatives.
As to the severity of the measure, the applicant company had not been ordered to withdraw the magazine altogether, but merely to black out the offending photograph; hence, no restrictions had been imposed on the article itself or the other photographs accompanying it. The measure had been an appropriate response to the infringement of the family’s privacy, imposing only proportionate restrictions on the exercise of the applicant company’s rights. The applicant company had not demonstrated how the measure was liable to have a chilling effect on the way in which the magazine had exercised, and continued to exercise, its freedom of expression. Likewise, the award of compensation to the deceased’s relatives had not been deemed excessive.
The measure in issue, for which the domestic courts had given relevant and sufficient reasons, had therefore been proportionate to the legitimate aim pursued.
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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