April 15, 2015
Today, the Grand Chamber of the ECtHR held a hearing in the case of Couderc and Hachette Filipacchi Associés v. France (App. no. 40454/07). The hearing is webcasted and can be viewed on the Court’s website, here. The case concerns the right of privacy and reputation of Monaco’s reigning monarch conflicting with the right to freedom of expression of the French magazine Paris-Match.
Years after French, German and English media revealed that Monaco’s reigning monarch, Prince Albert II, had a child born outside marriage, the European Court needs to decide now whether the measures taken against the French magazine Paris-Match are to be considered interferences violating the right to freedom of expression. The case started when the child’s mother, Ms C, gave interviews to the media saying that she was living in the prince’s Paris apartment and that she received an allowance from him, as being the mother of his illegitimate child. French, German and English media published the interviews along with photographs showing the child as well as Prince Albert. He sued Paris-Match for invasion of privacy, and the French courts considered that the article and the accompanying pictures in Paris-Match came within the most intimate sphere of the Prince’s emotional and family life and were not apt to be the subject of any debate of general interest. According to the French courts the article and pictures in Paris-Match had caused irreversible damage to the Prince, as the fact that he was the child’s father, which had remained secret until publication of the article, had suddenly become public knowledge, against his wishes. Prince Albert II was awarded 50,000 euros (EUR) in damages and Paris-Match was ordered to print details of the judgment on its front cover. In the meantime the Prince had issued a statement in which he publicly acknowledged that the child was his.
Relying on Article 10 of the Convention, the applicants alleged that the judgments against them amounted to unjustified interferences with the exercise of their right to freedom of information. In its Chamber judgment of 12 June 2014, the European Court of Human Rights held, by four votes to three, that there had been a violation of Article 10 of the Convention. The Court found that the judgments against the applicants had made no distinction between information which formed part of a debate of general interest and that which merely reported details of the private life of the Prince of Monaco. Nor did the case simply concern a dispute between the press and a public figure; the interests of Ms C. and the child in asserting his existence and having his identity recognised had also been at stake. In the Court’s view, there was no reasonable relationship of proportionality between the restrictions imposed on the right to freedom of expression of the applicants and the protection of the reputation and rights of others. On 13 October 2014 the case was referred to the Grand Chamber at the request of the French Government and the Court has now held a hearing today (15 April 2015). The Grand Chamber’s ruling is expected to set a (new?) standard for privacy and media reporting under the ECHR.
The London based NGO Media Legal Defence Initiative (MLDI) has been allowed a third party intervention, supporting the claim and arguments of Paris-Match in this case. MLDI’s submission, which has been endorsed by The New York Times, The Guardian, Reuters, NRC Media and Il Fatto Quotidiano, emphasises that the child’s mother willingly spoke to the media and that the child has a right to assert his existence and have his identity recognised. It is argued that Prince Albert’s privacy interests should not outweigh this, particularly given his status as Monaco’s reigning monarch which adds an important public interest element to the story. MLDI’S submission is posted on the MLDI website, here.
For its comparative study, MLDI based is submission also on input from Belgium, reported in a brief legal opinion. With the permission of MLDI, this report is reproduced here:
ECHR referral to Grand Chamber in Couderc and Hachette Filipacchi Associés v. France
Third party intervention by MLDI
Comparative law input – Belgium: Freedom of expression and media reporting on privacy-related issues damaging the good name or reputation of public persons and politicians
By Dirk Voorhoof, Ghent University (2 January 2015)
Over recent years, Belgian jurisprudence has aligned itself with the case law of the ECtHR in cases of conflicting human rights, particularly in situations where a fair balance must be struck between the protection of privacy and the right to reputation as protected by Article 8 ECHR on the one hand, and guaranteeing the right to freedom of expression and information as protected by Article 10 ECHR on the other (see D. VOORHOOF and P. VALCKE, Handboek Mediarecht, Brussels, Larcier, 4th ed., 2014, p. 74-76 and 202-272; D. VOORHOOF, “Vrijheid van meningsuiting en drukpersvrijheid”, in J. VANDE LANOTTE, G. GOEDERTIER, Y. HAECK, J. GOOSSENS and T. DE PELSEMAEKER, Handboek Belgisch Publiek Recht, Deel I. Inleiding tot het Belgisch Publiek recht, Bruges, Die Keure, 2014, p. 577-613).
The Supreme Court (Court of Cassation) has repeatedly made clear that the finding that an individual’s reputation has been damaged, among others on the basis of Article 8 ECHR, is not sufficient to justify an interference with the right to freedom of expression (see, among other cases, Supreme Court, 27 April 2007, AM 2007/4, 277; Supreme Court, 23 May 2011, RCJB 2012, 42; Supreme Court, 12 January 2012, AM 2012/4, 358 and Supreme Court, 28 November 2014, Nr. C. 13/0437.N.). In accordance with a consistent series of case law, the sole finding that an expression damaged an individual’s reputation or was of an offensive or privacy-breaching nature, is not sufficient. It should be clearly established that there is a pressing social need for the imposed restriction, measure or sanction, taking into account the context in which the opinion was expressed, the capacity of the parties and other relevant circumstances. Moreover, the imposed restriction, measure, order or sanction should also be proportionate as to the aim pursued (see also D. VOORHOOF, “Forrest-cartoon op cover van MO* beledigend?”, Rechtskundig Weekblad 2014-2015/25, 926 and S. SMET en D. VOORHOOF “Vrijheid van meningsuiting, foto’s van publieke figuren en ‘chilling effect’”. Annotation to MGN Limited v. United Kingdom (ECtHR 18 January 2011), European Human Rights Cases (ECHR) 2011/5, 781-806).
In a 2000 case arising from a media report by the public broadcasting company VRT which raised questions regarding the private life of a politician which in turn called into question his suitability to participate in a parliamentary inquiry into the sexual abuse of children, it was held that an interference by means of a judicial intervention or a (civil) conviction was not justified, given the context of the accusations. According to the judgment, the offending report on VRT was correct and therefore did not unnecessarily discredit the politician’s private life, given the (social) context in which it took place. According to the judgment, the report contained “useful information (…) for the public” (District Court Brussels, 21 September 1999, AM 2000/3, 334).
The same approach was taken in a more recent judgment of the District Court Leuven of 22 May 2013, in relation to the summons by a well-known Flemish politician and journalist Pol Van Den Driessche (“PVDD”) in response to an article in Humo (a Belgian magazine) entitled: “Pol Van Den Driessche: 20 years of sexual intimidation. DSK in Flanders” (“Pol Van Den Driessche: 20 jaar seksuele intimidatie. DSK in Vlaanderen”). The article reported in essence, based on several testimonials, that during his career as a journalist and later also as a politician, PVDD has repeatedly sexually harassed women. The witnesses stated that they were unexpectedly touched by PVDD in a sexually suggestive manner, which felt like sexual intimidation. PVDD claimed EUR 625,000 in damages from the Humo journalist Jan Antonissen and argued that the article was defamatory. The judgment emphasised however that “when a journalist is convinced of the fact that a public figure (in this case a former senator and ‘candidate mayor of the city of Bruges’) has committed offences of sexual intimidation he has the right to inform the public about this. It is not wrong for the journalist to find this of social interest and to ask the question whether someone who behaves in such a manner can be mayor, or even express his opinion that such a person should not be mayor. It is not incorrect either to stimulate a societal debate regarding sexual intimidation in the work environment, and to take as a starting point the actions of a well-known politician”. According to the District Court, the journalist was allowed to assume that the witnesses he cited were “sufficiently credible and that the overall impression based on the various testimonials was in line with the truth”. The District Court acknowledged that a part of the title of the Humo article, primarily “DSK in Flanders” (‘DSK in Vlaanderen’), was “provoking, unnuanced and shocking”. However, the District Court added that a title, which is the reproduction of an idea, can be shocking and that in this case the journalist had not acted incorrectly. Indeed, the title did not suggest that PVDD would have committed the offences of rape or violent assault. Similarly, such an insinuation did not follow from the text of the article. The District Court did not find that the Humo journalist had acted incorrectly or unlawfully, and declared PVDD’s claim for damages unfounded (District Court Leuven (5th chamber), 22 May 2013, in the case of Pol Van Den Driessche, claimant, v. Jan Antonissen, respondent and HUMO NV, intervening party; E. VERJANS, “Humo mag Van Den Driessche vergelijken met DSK”, De Juristenkrant 2013/272, 16. See also President District Court Brussels (summary proceedings) 7 September 2011, AM 2013/5, 408 and District Court Brussels 5 February 2013, AM 2013/5, 411).
Further recent Belgian cases have deemed the publication of facts relating to the private life of public figures or celebrities lawful: on every occasion the courts have taken into account the relevant persons, the manner in which the facts were reported, the context within which the reporting happened and the medium in which the report was published. Belgian case law refers explicitly to and applies the criteria developed by the ECtHR in Von Hannover v. Germany (nr. 2) and Axel Springer AG v. Germany (see District Court Brussels 10 juni 2013, Hans Otten en Colette van Remortel v. Frederik De Swaef, Sanoma Magazines Belgium NV (Story) and District Court Brussels, commercial section, 28 May 2013, Phaedra Hoste v. Sanoma Magazines Belgium NV (Story)).
Previously the District Court held that the announcement of a well-known actress’ pregnancy via the media (BEL-RTL) was not unlawful and could therefore not warrant judicial conviction. The District Court referred to, among other things, “un intérêt légitime du public” and was ultimately of the opinion that “en l’espèce, la restriction à la protection de la vie privée est d’autant plus acceptable que les information révélées sont en rapport avec l’actualité professionelle de la demanderesse” (District Court Brussels 11 December 2007, Cécile de France v. INADI (BEL-RTL)).
In a judgment of 4 November 2014 the Brussels Court of Appeal explicitly confirmed this approach emphasising the necessity to thoroughly consider the rights and interests connected to Article 8 and 10 ECHR. In Pieter Loridon and bvba Bomba, v. Veerle Van de Wal, the court found that the right to a private life of the relevant public figure “L.” did not sufficiently warrant a judicial interference against a weekly magazine. The Court of Appeal ruled explicitly: “When a journalist has acted in accordance with deontological rules – among others on the basis of reliable source material – and the news report is of a social interest, in the determination of the complaints on the basis of damage to reputation, freedom of expression weighs heavier than the right to privacy”. Although in the relevant case the offending news report in the weekly magazine did relate to the private (romantic) life of claimant L., according to the Court “the release to the public of part of one’s privacy” was inseparably connected to his professional life as a popular ex-basketball player and successful business man. The Court concludes: “The article in question can in the relevant circumstances not be considered a violation of the privacy of Mr. L. as far as his past relationships are concerned”. Also with regard to a series of other elements of the report the Brussels’ Court indicated that the relevant facts related to the professional activities of claimant L., also because it was not possible to make a strict distinction between L. as a private person and his professional life (Brussels CA 4 November 2014, Pieter Loridon and bvba Bomba, v. Veerle Van de Wal, Domien De Wit en Sanoma Media Belgium (Story)).
Where necessary it can be indicated that, as far as we are aware, there is no case law from the past 20 to 25 years that contains a judicial conviction in Belgium as a result of a publication in the media of privacy-sensitive information in connection with the extramarital affairs of members of the Belgian royal family. Notably, neither media reports regarding the putative relationship of Prince Laurent with a well-known actress/singer/pin up, nor the publication of and further reporting on the extramarital daughter of former King Albert II (see the extensive reporting in the Belgian media over the past years regarding Delphine Boël) have led to any law suit against the media or judicial decision based on the right of privacy or reputation.
 The relevant paragraph of the original judgment reads as follows: “wanneer een journalist overtuigd is van het feit dat een publiek persoon (in casu een voormalig senator en ‘kandidaat burgemeester van de stad Brugge’) zich schuldig heeft gemaakt aan feiten van seksuele intimidatie hij het recht heeft om het publiek hierover in te lichten. Het is vanwege de journalist niet foutief dit feit maatschappelijk belangrijk te vinden en de vraag te stellen of iemand met een dergelijk gedrag burgemeester kan zijn, of zelfs zijn eigen overtuiging dat iemand met een dergelijk gedrag geen burgemeester kan zijn te uiten. Het is evenmin foutief om een maatschappelijk debat met betrekking tot seksuele intimidatie op de werkvloer te stimuleren, en hierbij uit te gaan van de handelswijze van een bekend politicus.”
 The relevant paragraph of the original judgment reads as follows: “voldoende geloofwaardig waren en dat het globaal beeld dat uit de verschillende getuigenissen naar voren kwam, met de werkelijkheid overeen kwam.”
 The relevant paragraph of the original judgment reads as follows: “provocerend, ongenuanceerd en choquerend”.
 The judgment of the District Court of Brussels (20th chamber) in the case of Dheedene and Dexters v. Van Hellemont, Smeets, Velghe and NV De Persgroep Publishing, of 14 December 2014 is not included in this analysis, as it was only made available after finishing this report. It is to be noticed that the reporting of speculative information about details of intimate aspects of the private life of the concerned persons, having no public functions, in this case was considered a breach of their privacy and reputation. The reporting of what was said by one controversial source, without checking the truthfulness of the information about intimate aspects of the private life of the two celebrities at issue, and without any public interest involved, could not be justified by the right to freedom of expression.
 The relevant paragraph of the original judgment reads as follows: “Wanneer een journalist gehandeld heeft volgens de deontologische regels – o.a. op basis van betrouwbaar bronnenmateriaal – en de berichtgeving een maatschappelijk belang vertoont, moet bij de beoordeling van klachten op grond van de aantasting van de eer en geode naam of de privacy, een groter gewicht toegekend worden aan de vrijheid van meningsuiting dan aan het recht op privacy.”
 The relevant paragraph of the original judgment reads as follows: “Het kwestieuze artikel kan in de gegeven omstandigheden dan ook niet aangezien worden als een schending van de privacy van de heer L. wat zijn relationeel verleden betreft.”