CASE OF COUDERC AND HACHETTE FILIPACCHI ASSOCIÉS v. FRANCE
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information)
André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens
5. The applicants are the publication director and the publisher respectively of the weekly magazine Paris Match. Ms Anne-Marie Couderc is a French national and was born in 1950. The company Hachette Filipacchi Associés, a legal entity incorporated under French law, has its registered office in Levallois-Perret. 6. On 3 May 2005 the British newspaper The Daily Mail published claims by Ms C., alleging that Albert Grimaldi, reigning Prince of Monaco since his father’s death on 6 April 2005, was the father of her son. The article referred to the forthcoming report in the Paris Match magazine and reproduced the main points of that report, together with three photographs, one of which showed the Prince holding the child in his arms. 7. On 3 May 2005, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing the article in question. 8. In spite of the notice to refrain, the weekly magazine Paris Match, in its edition no. 2920 of 5 May 2005, 1,010,000 copies of which were printed, published an interview in which Ms C. presented her son A. as having been born from her intimate relationship with the Prince, who had succeeded his father on the previous 6 April. Publicised on the magazine’s cover under the headline “Albert of Monaco: A., the secret child” (“Albert de Monaco: A., l’enfant secret”) the ten-page article, entitled “A. is Albert’s son, says his mother”, included several photographs showing the Prince beside Ms C. or the child. Those of the Prince and the child had been taken by Ms C. with the Prince’s consent. Ms C., who had sole parental authority, had handed them over to Paris Match for publication. 9. The article, in which Ms C. replied to the questions put by a journalist, gave details about the circumstances in which she had met the Prince, their meetings, their intimate relationship and feelings, the way in which the Prince had reacted to the news of Ms C.’s pregnancy and how he had behaved on meeting the child. It noted that the boy had been born on 24 August 2003 and that the Prince had formally recognised him before a notary on 15 December 2003, but had requested that this fact should not be made public before the death of his own father, Prince Rainier III. 10. On 19 May 2005 the Prince brought proceedings against the applicants in the Nanterre tribunal de grande instance on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking compensation for invasion of privacy and infringement of his right to protection of his image through the publication of the above-mentioned article on 5 May 2005. 11. On 29 June 2005 the court allowed the Prince’s claim, awarding him 50,000 euros in damages and ordering that details of the judgment be printed in a full-page feature on the magazine’s front page, on pain of a daily fine and at the publisher’s expense, under the headline “Court order made against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable. 12. In allowing the Prince’s claims, the court noted, in particular, that from the first page onwards, the magazine disclosed the Prince’s paternity through the headline “Albert of Monaco: A., the secret child”, accompanied by a photograph showing him holding the child. It added that the ten-page article dealt with the issue of the Prince’s father-son relationship with the child, by means of questions which led the child’s mother to discuss her relationship with the Prince, the feelings of those involved, the Prince’s private life and reactions and the child’s recognition child before a notary. It added that numerous photographs, clearly taken in the context of the intimacy of the protagonists’ private life, had been deliberately chosen to illustrate and lend support to the disclosure; they were accompanied by the magazine’s own captions, which also referred to the Prince’s emotional life, analysing his conduct, his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child. The court considered that the entire article and the accompanying pictures came within the most intimate sphere of emotional and family life and that they were not apt to be the subject of any debate of general interest. It added that the claimant’s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct. In addition, the court held that a newspaper could not seriously claim to take the place of the courtroom, where the rights of children and women were lawfully defended. 13. The court concluded that the impugned article, which treated rumours in a sensational manner, both in its wording and through the completely irrelevant accompanying pictures, amounted to a serious breach of the claimant’s fundamental personality rights, the latter having specifically served notice by a bailiff on the publishing company to respect those rights on 3 May 2005. 14. The applicants appealed against that judgment and obtained a suspension of the judgment’s immediate enforceability. 15. On 6 July 2005 the Prince issued a statement in which he publicly recognised the child. The notarised document was entered in the register of births, deaths and marriages during the same period. 16. On 24 November 2005 the Versailles Court of Appeal gave judgment. 17. It noted that, through the interview with the child’s mother, the impugned article focused on revealing the birth of the child, who was presented as having been born from the intimate relationship she had conducted with the Prince since 1997. Furthermore, on the date of the article’s publication, both his birth and his father’s identity were unknown to the public. 18. The court of appeal emphasised that emotional, love or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, which, according to the court, made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions. It noted that the fact of the Prince’s fatherhood “had never been publicly recognised”, that the Monegasque Constitution made it impossible for a child born outside wedlock to accede to the throne and that the Prince had not given his consent to the disclosure of his possible paternity of the child, having on 3 May 2005 indicated to the applicant company his opposition to the publication of those facts. In consequence, it concluded that the applicant company had deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the Convention. It considered that this offence could not be justified by the requirements of current affairs reporting, the legitimacy of the information or readers’ right to information, which did not cover the Prince’s secret paternity, even if he had become the reigning Prince of the Principality since his father’s death in April 2005. 19. The court of appeal further noted that the article did not merely disclose the existence of a “secret” child. It also contained numerous digressions derived from the confessions made by the child’s mother, concerning the circumstances of their meeting, the Prince’s feelings, his most intimate reactions in response to the news of the pregnancy and his attitude towards the child during private encounters. It considered that this could not be justified by the concomitant publication of these facts in a German magazine, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure. The child had no official status which would have rendered his birth and the disclosure of the father’s identify a subject which the media, as part of their duty to provide information, were required to bring to the public’s attention. It found that although the photographs which accompanied the article and showed the respondent with the child had been taken by the latter’s mother and with the Prince’s consent, he had not consented to their publication, and that consequently she was at fault. 20. The court of appeal concluded that the publication in question had caused the Prince irreversible damage, in that the fact that he was the child’s father, which he had wished to keep secret, and which had remained so from the child’s birth until publication of the impugned article, had suddenly become public knowledge, against his wishes. The non-pecuniary damage thus caused justified the issuing of an order for publication, as supplementary compensation, which, in view of the nature of the breach and the seriousness of its consequences, was in no way disproportionate to the competing interests and, on the contrary, represented the most adequate redress in such circumstances. 21. The Versailles Court of Appeal upheld the contested judgement, in particular the payment of 50,000 euros in damages, and merely varied the conditions of the order for publication, which was no longer to appear under a headline and occupy one third of the front cover. Thus, the court ordered that in the first issue to be published in the week following service of the judgment, a box covering the lower third of the front page and containing the following text was to be printed on a white background, failing which the applicant company would be fined 15,000 euros per issue: “By a judgment of the Versailles Court of Appeal, upholding the judgment delivered by the Nanterre tribunal de grande instance, the company Hachette Filipacchi Associés in issue no. 2920, dated 5 May 2005, of the newspaper Paris Match, in an article entitled ‘Albert of Monaco: A. The secret child’ has been found to have invaded the privacy and infringed the right to his own image of Albert II of Monaco.” 22. This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under the following editorial commentary: “Albert of Monaco: The truth is condemned. Paris Match disclosed the existence of his son, A. The courts have penalised freedom to impart information. The international press reacts to support us.” 23. The applicants appealed on points of law. In their further pleadings, they relied, in particular, on Article 10 of the Convention, given that the disclosure of the Prince’s paternity was a matter of public life and was justified by the requirements of imparting information, in view of the functions that he occupied as sovereign of a Principality with a hereditary monarchy. 24. By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on the grounds, inter alia, that: “... every person, whatever his rank, birth, property or present or future functions, is entitled to respect for his private life; the judgment notes on the one hand that, on the date on which the article was published, the child’s existence and his family relationship were unknown to the public, and that, on the other, the Principality’s Constitution rules out the possibility of his accession to the throne, since he was born outside wedlock, a situation that, moreover, the company did not allege to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms C. and Prince Albert met and about their relationship, the Prince’s reactions to the news of the pregnancy and his subsequent attitude towards the child; in the light of these findings and considerations, the court of appeal correctly noted the lack of any topical news item or any debate on a matter of general interest which justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public; moreover, the publication of photographs of a person to illustrate subsequent content which amounted to an invasion of his privacy necessarily infringes his right to control of one’s own image.” 25. The interview with Ms C. and the disputed photographs were also published in the German weekly magazine Bunte of 4 May 2005. 26. Having brought urgent proceedings against this magazine in order to prevent any further publication, the Prince’s case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court (Landgericht), upheld on 18 November 2005 by the Karlsruhe Court of Appeal (Oberlandesgericht). 27. The German courts placed the public’s right to information over the Prince’s interests in protection of his private life, having regard to his status as sovereign of a European principality. They described him as an “undeniable figure of contemporary society” and considered that the issue of a male descendent was of decisive importance in a constitutional hereditary monarchy, given that a change to the rule prohibiting a child born out of wedlock from claiming the Monegasque throne could not be ruled out in the future. 28. They considered that it was for the child’s mother, and not for the Prince, who had not recognised him, to decide whether the disclosure of the child’s existence fell within the protected private sphere. However, the Karlsruhe Court of Appeal ordered that a photograph showing the Prince in Ms C.’s company was not to be published.