CASE OF HACHETTE FILIPACCHI ASSOCIES v. FRANCE
No violation of Art. 10
Christos Rozakis
6. In its 19 February 1998 edition the French weekly magazine Paris-Match, published by the applicant company, featured an article in its “News” section entitled 'La République assassinée' (The Murdered Republic), concerning the murder of the Prefect Claude Erignac in Ajaccio, Corsica, on 6 February 1998. 7. The article was illustrated by a photograph of the scene, taken moments after the murder, showing the prefect's body lying on the ground. 8. The article was published a week after the murder, by which time the news had been extensively covered and commented on in the media, both in the printed press and on television, including the national channels. 9. The magazine's two-page colour photograph showed Mr Erignac's lifeless body lying on the ground, his face turned partly towards the camera. In the right hand corner of the picture, under the headline 'La République assassinée', the following commentary could be read: “On this Ajaccio pavement, on Friday 6 February at 9.15 p.m., Claude Erignac, Prefect of Corsica, wrote a tragic page in our history with his blood. No prefect had been killed in France since Jean Moulin in 1943 ... In 1998 the bullets fired into the back of this unarmed man, who was on his way to listen to Beethoven's “Heroic Symphony”, will shake all those who thought terror was something you get used to out of their stupor. In the book of condolences opened at the prefecture, many Corsicans, proud as they are reputed to be, will write their “shame”. They will applaud President Chirac when, at the memorial in Ajaccio to all those who gave their lives for France, he reaffirms the values of the Republic. Values which, today, have become a challenge.” 10. On 12 February 1998 Claude Erignac's widow and children lodged an urgent application against several companies (including the applicant company) seeking the seizure, under Article 809 of the new Code of Civil Procedure, of all copies of magazines containing the aforesaid photograph (including Paris-Match) and prohibition of their sale on penalty of fines. They also sought an award of damages in the sum of 150,000 French francs (FRF) payable jointly and severally by the defendants. 11. The claimants submitted that the purpose of publishing the photograph of the bloody, mutilated body of the Prefect of Corsica was by no means to inform the public but purely commercial, and constituted a particularly intolerable infringement of their right to respect for their private life. 12. The defendant companies replied that the picture of a person who died in a public place because of the post he occupied could not constitute either a violation of his family's right to respect for their private life or a manifestly unlawful infringement warranting the intervention of the urgent-applications judge when the picture had been published in the context of a political and judicial event that amounted to a national tragedy and, furthermore, had been published and disseminated by numerous other press agencies and television channels, including public ones. 13. By an order of 12 February 1998, the President of the Paris tribunal de grande instance, under Article 809 § 1 of the new Code of Civil Procedure, found against the applicant company and the other defendant companies for the following reasons: “... the claimants contend that, in spite of being put on notice, the weekly magazines Paris Match and VSD published in their editions which went on sale on 12 February 1998 a photograph of the bloody, mutilated body of Claude Erignac, Prefect of Corsica, who was murdered in Ajaccio on 6 February 1998; ... it is established that the public's right to information authorises a newspaper to inform its readers, in words or in pictures, of any exceptional event that amounts, as in this case, to a national tragedy, drawing it to the attention of public opinion; ... this fundamental right has its limits only in a publication which is particularly intolerable, because the excessively serious nature of the text or picture is liable to cause the victims unbearable distress, the nature and extent of which are for the urgent-applications judge to determine, in keeping with the provisions of Article 809 § 1 of the new Code of Civil Procedure; ... in the instant case the publication of the photograph showing the dead body of Prefect Claude Erignac lying in the street cannot but constitute an intolerable injury to the feelings of the claimants, who have undergone a particularly serious emotional shock in view of the exceptional circumstances of the murder; ... the need for information cannot justify the existence of such an infringement – even if the photograph in issue, which was taken in a public place, was touched up and published by different news sources – without every effort being made to preserve the dignity of the murdered prefect's body and show a minimum of consideration for the feelings of the claimants, for whom time had not yet alleviated the horror of their ordeal; ... however ... a seizure order would be unenforceable in practice, and disproportionate to the nature of the infringement complained of, for which compensation could be sought in court ...” 14. The urgent-applications judge ordered the applicant company to publish the following statement at its own expense in the following issue of Paris-Match, in a box measuring fifteen centimetres by fifteen centimetres, under the heading “Court-ordered statement” in bold characters one centimetre high: “By order of 12 February 1998, the Paris tribunal de grande instance, acting on an application in urgent proceedings, declared that the photograph published by Paris Match in its 19 February 1998 issue, showing the dead body of the Prefect Claude Erignac, caused Mrs Erignac and her children considerable distress.” 15. The applicant company appealed against that order, submitting that the measure concerned amounted to a violation of press freedom and the right to inform guaranteed under Article 10 of the Convention. It argued that the photograph in issue was the dark, subdued image of a historic event and, as such, could not constitute an intrusion into the Erignac family's private life. The applicant company also disputed the alleged indecency of the photograph. 16. In a judgment delivered on 24 February 1998 the Paris Court of Appeal upheld the interim order, but modified the content of the statement. Having had regard, in particular, to Article 10 of the Convention, the Court of Appeal ruled that: “... under the provisions of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, exercise of the right to freedom of expression may be subject to such penalties as are prescribed by law and are necessary in a democratic society for the protection of the rights of others; ... Article 9 § 2 of the Civil Code embodies a penalty that meets the requirements of the aforesaid provisions, namely that judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.” ... in the instant case ... the offending photograph, as published ... by the weekly Paris-Match, clearly shows the body and face of Claude Erignac, lying on the ground in a street in Ajaccio in the moments following his murder on 6 February 1998; ... the publication of that photograph at a time when Mr Erignac's close family was still in mourning, as it was done without their consent, constituted a gross intrusion into their grief and, accordingly, the intimacy of their private life; ... in the presence of such an intrusion an urgent-applications judge who finds, as in the instant case, that he is unable materially to make the intrusion cease, by a seizure measure, for example, is empowered by the last of the laws mentioned above to prescribe any other appropriate measure; ... it follows that the measure of publishing a statement prescribed by the first judge is legally justified under the provisions of Article 9 § 2 of the Civil Code, provided that its purpose is to cause the intrusion into the Erignac family's private life to cease; ... in order to satisfy that requirement, the content of the statement should be modified in the manner prescribed in the operative provisions of this judgment, and the decision ordering its publication should be combined with a fine ...”. 17. The Court of Appeal ordered the publication, in the first issue of Paris-Match to be published after the judgment had been served, of a statement worded as follows: “... in bold characters half a centimetre high, under the heading “Publication of court judgment”, in a box measuring 15 x 7.5 centimetres: “In a judgment of 24 February 1998, the Paris Court of Appeal ordered the publication of the following statement: The photograph of the body of Claude Erignac lying on the ground in a street in Ajaccio which appeared in edition 2543 of the weekly Paris Match, dated 19 February 1998, was published without the consent of Claude Erignac's family, who consider its publication as an intrusion into the intimacy of their private life” ...” 18. The applicant company lodged an appeal on points of law, claiming among other things that there had been a violation of Article 10 of the Convention. 19. In a judgment of 20 December 2000 the Court of Cassation dismissed the appeal for the following reasons: “... having noted that the photograph published clearly showed the body and face of the murdered prefect lying on the ground in a street in Ajaccio, the Court of Appeal was able to rule that the picture concerned showed disregard for human dignity and that its publication was illegal, its decision thus being legally justified with regard to the requirements of Article 10 of the European Convention and Article 16 of the Civil Code ...”. 20. The Erignac family brought no proceedings on the merits. 21. Article 808 reads as follows: “In all urgent cases the President of the tribunal de grande instance may order any interim measures which are not seriously disputable or are justified by the existence of a dispute.” 22. Article 809 reads as follows: “The president may order at any time, even in the event of a serious dispute, such measures to preserve or restore the present position as are necessary either to prevent imminent damage or to put an end to a manifestly unlawful infringement. Where the existence of an obligation is not seriously disputable, he may award an advance to the entitled party, or order the execution of the obligation, even if it is an obligation to take action.” 23. Article 9 provides: “Everyone has the right to respect for his private life. Judges may, without prejudice to a right to compensation for damage sustained, order any measures, such as seizure, attachment and others, that may prevent an intrusion into private life or cause it to cease; in the event of urgency such measures may be ordered on an interlocutory application.” 24. Article 16 of the Civil Code provides as follows: “The law ensures the primacy of the person, prohibits any infringement of a person's dignity and guarantees respect for the human being from the beginning of life.” 25. Section 38, paragraph 3, of the version in force at the material time – which was repealed on 16 June 2000 – provided: “[A fine of 25,000 French francs] shall be applicable in established cases of publication, by any means, of photographs, engravings, drawings or portraits reproducing all or part of the circumstances of any of the crimes and offences provided for in chapters I, II and VII of part II of book II of the Criminal Code.” [which cover murder, among other things].