Couderc and Hachette Filipacchi Associés v. France (application no. 40454/07)
05 May 2015
In the era of the 24-hour news cycle, each new scandal about the rich and famous appears to disappear as quickly as it emerges. Not so, however, in the case of a 2005 article in Paris Match magazine, which just weeks ago formed the basis of a hearing in the Grand Chamber of the European Court of Human Rights.
The applicants were the company Hachette – Filipacchi, the publisher of Paris Match and its editor, Anne – Marie Couderc. On 3 May 2005, the Daily Mail published claims that Prince Albert II of Monaco was the father of her son. The article reproduced the main points of an interview by Anne-Marie Couderc due to be published by Paris Match. In spite of a notice served by Prince Albert to refrain from publishing, Paris Match published on 5 May 2005. An article also appeared in the German magazine Bunte.
The article in question revealed the existence of Prince Albert of Monaco’s illegitimate son, and included both photographs and interview material provided voluntarily by the child’s mother. Prince Albert claimed an infringement of his right to privacy and image rights. He contended that his rights outweighed the publisher’s Article 10 right to freedom of expression.
On 29 June 2005, the Nanterre tribunal de grande instance awarded Prince Albert EUR 50,000 by way of damages and ordered Paris Match to publish a full feature front page extract of the judgment. Paris- Match appealed.
Prince Albert subsequently acknowledged paternity on 6 July 2005.
On 24 November 2005, the cour d’appel de Versailles upheld damages and a publication order but diminished the size of the ordered publication to 1/3 of the front cover and the judgment was eventually published on the cover of the Paris-Match issue on 5 January 2006.
France has long been known for its zealous defence of privacy rights, even as applied to those in the public sphere. It is perhaps unsurprising, therefore, that the French civil court initially found for the Prince; the article, it held, did not contribute to any debate of general interest and had caused irreversible damage to Prince Albert’s reputation and at the time of publication it considered it was important that the public did not know about his parentage of the child.
By 2014, however, the European Court of Human Rights had come to a rather different conclusion. In its view, the French rulings against Paris Match in fact constituted an unjustified limitation of Article 10 rights, with various factors having apparently been persuasive in this regard:
The Chamber noted the obvious societal value in freedom of expression, particularly in supporting an uncensored press and those in political positions had to display a greater tolerance. The mere fact of damaging someone’s reputation was not, it emphasised, sufficient to justify a restriction of this right. Rather, any restriction must be shown as necessary to protect a legitimate aim, and must also be proportionate to that aim.
In the instant case, the actual content of the Paris Match article merited greater analysis than had been offered at domestic level. As well as core information in relation to the child’s paternity, it also contained additional details which might be termed ‘padding’ – for example, exploring the relationship between Ms. Couderc and the Prince. According the European judges, the core information quite plainly formed part of a debate of general interest (irrespective of the fact that illegitimate children are presently precluded from mounting the throne under the Monegasque constitution). Admittedly, the same could not truthfully be said of the various non-essential details contained within the article; however, these served to add colour and clarity to the story, and did not exceed the reasonable leeway afforded to all journalists for exactly this purpose.
New weight was also placed upon the rights of Ms. Couderc and her child, both of whom had a legitimate interest in having the child’s existence and paternity acknowledged publicly. To the extent that Ms. Couderc’s actions were intentional and could be viewed as merely an exploitation of her own Article 8 right to private and family life, the ECHR Chamber found it difficult to see how Prince Albert’s right must necessarily come up trumps. The need to protect Prince Albert’s private life had to be balanced against the debate on the future of the hereditary monarchy. Prince Albert himself was a figure of notoriety as Head of State and was also of importance and publication had enabled her son to emerge from secrecy.
Whilst over a million copies had been printed of the Paris-Match issue, the Daily Mail and Bunte had also been circulated in the public domain and thus most of the information was no longer confidential.
It thus found that, whilst member states generally benefit from a margin of appreciation when balancing competing rights, in this instance the respondent state’s decision lacked proportionality and amounted to a violation of Article 10 of the ECHR. This judgment echoes the wide debate of general interest as established in Von Hannover (NO.3).
This judgement appears to have been generally well-received, and so it was perhaps with some surprise that many greeted the latest instalment in the saga – namely, a referral to the Grand Chamber of the ECHR, at France’s request. Indeed, the precise basis upon which further judicial attention is merited remains unclear. Nonetheless, the matter was heard by the Grand Chamber on April 15th 2015, with private deliberations currently ongoing and a written judgment to follow in due course. Watch this space...