EHRM, 14-06-2007, nr. 71111/01

The case originated in an application (no. 71111/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’) by Hachette Filipacchi Associés, a company incorporated under French law with its registered office in Levallois-Perret (‘the applicant company’), on 20 March 2001.

The applicant company was represented by Mr M.-C. de Percin, of the Paris Bar. The French Government (‘the Government’) were represented by their Agent, Mrs E. Belliard, Director of Legal Affairs, Ministry of Foreign Affairs.

The applicant company complained of a violation of its right to freedom of expression as guaranteed under Article 10 of the Convention.

By a decision of 2 February 2006, the Chamber declared the application admissible.

The applicant company and the Government each filed observations on the merits.

Holds by five votes to two that there has been no violation of Article 10 of the Convention.

I disagree with the judgment in this case for the following reasons.

First of all I would point out that I do not share the majority's view that the applicant company has not shown in what manner the judicial order obliging it to insert in its magazine the statement referred to in the judgment may have had a deterrent effect on its freedom of expression (see paragraph 62 of the judgment). That statement was to the effect that the publication of a photograph of the dead body of Claude Erignac lying on a street in Ajaccio ‘was made without the consent of his family, who consider its publication as an intrusion into the intimacy of their private life’. The statement clearly implied that the newspaper was wrong to publish the photograph. I believe that obliging a newspaper to make such an admission against their will certainly discourages similar publications. The majority were wrong to speak in this context of the newspaper's freedom of expression in general terms. They should have confined themselves to examining whether such a statement would dissuade the newspaper from publishing material of this nature, not just any material

Secondly, and more importantly, I find unconvincing the approach of the majority that the right of Claude Erignac's family to respect for private life has been infringed to the extent that its protection should prevail over the freedom to publish a photograph which, undisputedly, was a matter of public interest. The majority based their conclusion on the fact that ‘[the publication of the photograph] in a widely distributed magazine intensified the trauma suffered by the relatives as a result of the assassination, so that they had legitimate reason to consider that their right to respect for their private life had been infringed’ (see paragraph 49 of the judgment).

The majority proceeded on the premise that if the grief of the relatives of a deceased person is compounded by any action, there is an infringement of the right to privacy. I do not intend to embark on this question in this case but, proceeding myself on the same assumption, I must say that a person who complains of injury to his feelings as a result of the actions of another cannot automatically be considered a victim of the violation of the right to privacy. There should be an objective examination of the complaint in order to establish whether the specific act complained of could reasonably be considered as having injured the feelings of the person concerned to the extent of amounting to a violation of the right to respect for his private life. If no objective examination is carried out and one accepts without further consideration a complaint of injury to feelings simply on that basis, this will lead to absurd results and people will be at liberty to block freedom of expression and other legitimate activities simply by complaining that their feelings have been injured.

Applying an objective test in the present case, I personally consider that the publication of the photograph and accompanying comment should be taken as a clear condemnation of the assassination, an expression of sympathy for and solidarity with the family, and a general appeal to public opinion to share the horror of that act. That cannot in my opinion intensify ‘the trauma’ of the family, a trauma which originated from the killing itself. I consider the family's reaction exaggerated. Apart from the judicial proceedings which led to the order in issue, they also claimed 150,000 French francs for the invasion of their private life caused by a photograph which was not, in itself, responsible for their grief. In any event, I would add that relatives of public figures like Prefect Erignac must be prepared to suffer the consequences of the publicity such personalities attract.

The evident effect of the photograph was to convey the full tragic impact of the assassination, correctly described in the accompanying comment as ‘a tragic page in [French] history’. It is in the general interest for such events to be publicised, in full detail, so that the public is informed about matters that affect society and the country as a whole. The public also has a right to receive that information, a right that cannot be overridden by the subjective feelings of the victim's family.

Many natural and other disasters such as earthquakes, tsunamis, fires, tidal waves, terrorist acts and armed conflicts result in deaths and the public must be informed of such disasters and all their catastrophic consequences in order to draw the necessary conclusions and act accordingly. Requiring newspapers or other mass media to publish statements such as the one under consideration in the instant case that imply misconduct on their part would certainly have a chilling effect on publications of public interest of this nature, at the expense of the right to freedom of expression and the right of the public to receive information. Nor can I accept that the relatives of the victims of such disasters can prevent the publication of photographs of their relatives by invoking their personal feelings.

In reaching my conclusions contrary to that of the majority, I have also taken into account the following:

I believe that the judgment directly or indirectly establishes the principle that no photographs of victims of criminal acts or, for that matter, of any disaster such as those mentioned above, can be published if their relatives complain of injury to their feelings. I believe that such a principle is inherently wrong in a democratic society.

For the reasons I have explained above, I find that there has been a violation in this case of the freedom of speech safeguarded by Article 10 of the Convention.

This case raises the question — in a particularly serious context — of the balance between freedom of information and protecting people's rights, in particular when pictures are published. The rights in issue here are Prefect Erignac's right to respect for his dignity after his death, and the rights of his family in mourning.

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.

As stated in paragraph 41 of the judgment, it is the duty of the press to impart — in a manner consistent with its duties and responsibilities — information and ideas on all matters of public interest; not only does the press have the task of imparting such information and ideas: the public also has a right to receive them (see, among other authorities, Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). Prefect Erignac's murder was without doubt a matter of public interest (see Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001-I) and a news item of major public concern (Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002).

Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (Oberschlick v. Austria (no. 1), judgment of 23 May 1991, Series A no. 204, p. 25, § 57). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38, and Thoma v. Luxembourg, no. 38432/97, §§ 45 and 46, ECHR 2001-III).

The Court has already considered the publication of photographs concerning public figures (Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI) or political personalities (Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002). However, it has never before pronounced judgment on the publication of photographs concerning the political assassination of a public figure.

In those cases the Court has heard relating to the balance between the protection of private life and freedom of expression, it has always emphasised the contribution the publication of photographs or articles in the press made to the general debate (see Tammer, cited above, §§ 59 et seq.; News Verlags GmbH & CoKG v. Austria, no. 31457/96, §§ 52 et seq., ECHR 2000-I; and Krone Verlags GmbH & CoKG, cited above, §§ 33 et seq.).

In the present case it had to determine whether the publication of the photograph of Prefect Erignac's body made an essential contribution to a debate on a matter of general interest.

I believe that the murder of Prefect Erignac, the State's representative in Corsica, was undeniably a matter of public interest. It was an event with major political repercussions, a national tragedy even, an offence to the Republic itself, and the public had the right to be informed. It was a subject at the very heart of the news, extending beyond the realm of private life. Restrictions on freedom of expression in this area must be construed strictly (see, among other authorities, Feldek v. Slovakia, no. 29032/95, § 74, 12 July 2001) and the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of ‘public watchdog’ (see, for example, Bladet Tromsø and Stensaas v. Norway[GC], no. 21980/93, § 59, ECHR 1999-III).

Prefect Erignac's murder, by three bullets in the back, was the first murder of a Prefect in France since Jean Moulin was killed in 1943, and deeply shocked France. The photo itself was (alas) neither more sensational nor more shocking than the murder it depicted. There is no denying that, in this day and age, news is often conveyed in pictures and often, as in this case, the picture makes the news. It should also be remembered that the offending photograph had been shown on national and international television before it appeared in Paris Match.

Moreover, there is no doubt that Prefect Erignac was targeted as a public figure and because of his office — that, highly symbolically, of representative of the French State in Corsica. Indeed, the offending publication was essentially a political comment, as witnessed by the title of the article (‘The Murdered Republic’) and the tenor of the text that went with the photograph.

Furthermore, precautions were taken when the photograph was published. The body was visible only as a rather blurred, dark mass, face downwards, which made the picture less crude.

Also, more importantly, the case in point was indisputably a matter of public interest about which the press had a duty to inform and the public to be informed. The importance of the event in that sense outweighed the private interest of the family. The situation could, of course, have been different, for example if the photograph had been taken in a private place, or by devious means, but that was obviously not the case here.

I cannot agree with the argument concerning the proportionality and nature of the penalty, on which I find the judgment lays too much emphasis. Every penalty, by its very nature, has a deterrent effect (on the clearly ‘chilling’ effect the fear of sanctions has on the exercise by journalists of their freedom of expression, see, mutatis mutandis, Wille v. Liechtenstein[GC], no. 28396/95, § 50, ECHR 1999-VII; Nikula v. Finland, no. 31611/96, § 54, ECHR 2002-II; Goodwin, cited above, p. 500, § 39; Elci and Others v. Turkey, nos. 23145/93 and 25091/94, § 714, 13 November 2003).

The chilling effect of the measure taken against the applicant company, even after the event, in so far as the Court stresses the fact that the family did not consent to the publication of the photograph, can be considered as a setback for our case-law and might — in the long run — place the press in a difficult position. They would always be obliged to publish statements or apologies and would ultimately find it hard to play their role as watchdog in a democratic society.

I hope the Court has not pronounced judgment here on a question of principle, for if it has, since the public interest rarely comes across as clearly as it does in the present case, the approach adopted by the majority could actually be detrimental to the interests of our democratic societies. I am thinking here of the numerous photographs of politicians or public figures — of the assassination of President Kennedy or Prime Minister Indira Gandhi, for example, or the attempted assassination of Pope John-Paul II — which might not be published in the future.

For the reasons I have explained above, I do not share the opinion of the majority that there was no violation of Article 10 in the present case.

With all due regard to the Erignac family's grief and with all the sympathy the facts of the case lead me to express towards them, I must say that if one day I were asked to cite a case judged by this Court with which I was familiar and which was related to freedom of information and affected an evident and undeniable public interest, I would cite this one.

Done in French, and notified in writing on 14 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NIELSEN

Registrar

Christos ROZAKIS

President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following dissenting opinions are annexed to this judgment:

C.L.R.

S.N.