By Dirk Voorhoof *
The Grand Chamber’s judgment delivered on 10 November 2015 in Couderc and Hachette Filipacchi Associés v. France elaborates on the appropriate standard for privacy and the media under European human rights law. In essence, the Court discussed the public-interest value of a disputed article published in the magazine Paris Match, revealing aspects of the private life of a public person exercising an important political function. This blog, written on 11 November, Women’s Day in Belgium, focusses in particular on women’s right to tell the story of a relationship as a matter of personal identity.
The Prince, his mistress, his lovechild and the media…
In 2005 the French magazine Paris Match was ordered to pay EUR 50,000 in damages and to publish a statement detailing the judgment of the Versailles Court of Appeal finding a breach of privacy because of an article that had caused irreversible damage to the rights of Albert II of Monaco.
The impugned article in Paris Match contained an interview with the former lover of Albert Grimaldi, Ms Conte, who claimed that her son’s father was Albert Grimaldi, who had become reigning prince of Monaco. In particular, the interview described the circumstances in which Ms Coste had met the Prince, their intimate relationship, their feelings, and the manner in which the Prince had reacted to the news of Ms Coste’s pregnancy and had behaved towards the child at his birth and afterwards. Ms Conte also revealed that she was living in the prince’s Paris apartment and that she received an allowance from him, being the mother of his illegitimate child. The article was illustrated by several photographs showing the Prince with the child in his arms and with Ms Coste.
Considering that the publication of the article in Paris Match interfered with his right to private life and to protection of his own image, the Prince had brought proceedings against Paris Match, on the basis of Article 8 of the Convention and Articles 9 and 1382 of the French Civil Code, seeking damages from the publishing company and an order to publish the court’s ruling. The French Court of Cassation confirmed the finding of the invasion of Albert Grimaldi’s privacy, inter alia, on the grounds that “every person, whatever his rank, birth, fortune or present or future functions, is entitled to respect for his private life”. It also considered that the Court of Appeal had
“correctly noted the lack of any topical news item or any debate on a matter of public interest which would have 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 amounts to an invasion of his privacy necessarily infringes his right to control of his own image”.
The Chamber judgment and the referral to the Grand Chamber
The publication director, Ms Couderc and the publishing company of the weekly magazine Paris Match lodged an application with the European Court of Human Rights against the French Republic complaining about an unjustified interference with their right to freedom of expression, guaranteed by Article 10 of the Convention.
The chamber of the fifth section of the European Court of Human Rights, in a judgment of 12 June 2014, held, by four votes to three, that there had indeed been a violation of Article 10 of the Convention (Couderc and Hachette Filipacchi Associés v. France). The Court found that the French courts had not taken sufficiently into account that the impugned article and interview formed part of a debate of general interest, especially in view of the hereditary nature of the Principality of Monaco’s ruling family. Interestingly, the European Court’s judgment also noted that the case did not only concern a dispute between the press and a public figure: the interests of Ms Conte and the child in asserting his existence and having his identity recognised had also been at stake (§ 63). The judges of the majority, Angelika Nußberger, Ann Power-Forde, Helena Jäderblom and the French judge André Potocki emphasized the interest of the mother and of her son:
“La Cour note qu’en faisant ces révélations, le but de la mère de l’enfant était manifestement d’obtenir la reconnaissance publique du statut de son fils et de la paternité du Prince, éléments primordiaux pour elle pour que son fils sorte de la clandestinité (…)” (§ 73).
The three judges dissenting with the majority’s approach, Mark Villiger, Boštjan M. Zupančič and the Belgian Judge Paul Lemmens, firmly opposed against the finding of a violation of Article 10, referring to the margin of appreciation for the French authorities in protecting and emphasizing the right of privacy of the Prince in this matter:
“Nous ne voyons pas de raison de rejeter l’appréciation faite sur ce point par les juridictions nationales. Aussi bien le tribunal de grande instance de Nanterre que la cour d’appel de Versailles ont considéré que la naissance du fils du Prince, qui n’avait aucun statut officiel, relevait de la sphère de la vie privée et non d’un débat d’intérêt général (…). La Cour de cassation a confirmé l’exactitude de l’analyse de la cour d’appel en retenant « l’absence de tout fait d’actualité comme de tout débat d’intérêt général dont l’information légitime du public aurait justifié qu’il fût rendu compte »”.
In a comment on the judgment, originally posted on the IntlawGrrls blog and re-published on Inforrm’s Blog, Nani Jansen, Legal Director of the Media Legal Defence Initiative, analysed the Court’s reasoning from what she labelled as “a feminist perspective”. She wrote:
“When it comes to information disclosing the infidelity of powerful men, national courts have been more than helpful in expeditiously securing the silence of the women involved in such affairs, accrediting more weight to the man’s claims of privacy, than the woman’s right to tell the tale of what was ultimately her affair as well”.
Jansen also referred to the judgment in Ruusunen v. Finland (2013), in which the European Court approved of the Finnish courts silencing a woman who had published a book about her relationship with the former Finnish Prime Minister, Matti Vanhanen. The case concerned Susan Ruusunen, a single mother, who had been dating Vanhanen for two years while he was still in office. Vanhanen had not objected to her writing about their relationship and even posed for the cover photo of the book together with Ruusunen. Jansen pointed out:
“Nevertheless, she and her publisher were criminally prosecuted and her book was taken out of circulation. In the Court’s deliberations, no attention was paid to Ruusunen’s right to tell her story as a matter of personal identity – the entire privacy v. freedom of expression assessment was conducted from the perspective of Vanhanen’s right to privacy”.
Although the details revealed by Susan Ruusunen about Matti Vanhanen in the Finnish case were of a more specific intimate kind as those relating to Albert II of Monaco in the French case, Jansen found it “particularly refreshing” to see that the European Court’s judgment in Couderc and Hachette Filipacchi Associés v. France explicitly took into account the interests of both the child and the mother in telling their story. Indeed, the Court considered:
“Si en l’occurrence le thème abordé relevait de la vie privée du Prince, la Cour rappelle qu’il ne s’agissait pas uniquement de sa vie privée, mais également de celle de la mère de son fils et de ce dernier. Or, il est difficile de concevoir comment la vie privée d’une personne, en l’occurrence celle du Prince, pourrait faire obstacle à la revendication d’une autre personne, en l’occurrence son fils, à affirmer son existence et à faire reconnaître son identité. La Cour note à cet égard que Mme C(onte) avait donné son consentement à la publication pour elle-même, aussi bien que pour son fils (…)” (§ 63).
The Chamber judgment, however, did not become final. On request of the French Government the case was referred to the Grand Chamber on 13 October 2014. Third-party comments were received from the Government of Monaco and from the non-governmental organisation Media Legal Defense Initiative, which had been given leave to intervene by the President of the Grand Chamber to take part in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 3).
The Grand Chamber’s judgment: a “feminist perspective”?
In its judgment of 10 November 2015, the Grand Chamber unanimously confirms the approach of the chamber’s majority. It finds that the birth of the Prince’s illegitimate son could not come solely within the private sphere of Albert Grimaldi, as the disclosure of the Prince’s fatherhood could be understood as constituting information on a question of public interest:
“The Court considers that there is an undeniable public-interest value – at least for the subjects of the Principality – in the existence of a child (particularly a son) of the Prince, who was known at the relevant time as being single and childless. The fact that the Prince’s son was born out of wedlock is irrelevant in this regard. At the material time this child’s birth was not without possible dynastic and financial implications: the Prince was still unmarried and the question of legitimation by marriage could be raised, even if such an outcome was improbable” (§ 108).
According to the Court, the impugned information also had a political dimension, as it
“could arouse the interest of the public with regard to the rules of succession in force in the Principality (which prevented children born outside marriage from succeeding to the throne). Likewise, the attitude of the Prince, who wished to keep his paternity a secret and refused to acknowledge it publicly (…), could, in a hereditary monarchy whose future is intrinsically linked to the existence of descendants, also be of concern to the public” (§ 111).
The Grand Chamber is especially critical of the French domestic courts’ failure to weigh up the Prince’s right to privacy with that of his son and the child’s mother, Ms Coste. Ms Coste had willingly given the interview and revealed certain details of her private affair with the Prince; the resulting, disputed article had made clear that the son’s right to public recognition by his father was of utmost importance to her, and was a key reason for her decision to publicise the issue. In a more explicit and more elaborated way than the Chamber’s judgment, the Grand Chamber values the rights of Ms Coste, including her and her son’s private life and her right to freedom of expression. Hence, Ms Coste “was certainly not bound to silence”:
“ The Court would then emphasise that the Prince’s private life was not the sole subject of the article, but that it also concerned the private life of Ms Coste and her son, over whom Ms Coste alone had parental responsibility. Thus, it also contained details about the interviewee’s pregnancy, her own feelings, the birth of her son, a health problem suffered by the child and their life together (…). These were elements relating to Ms Coste’s private life, in respect of which she was certainly not bound to silence and was free to communicate. In this regard, the Court cannot ignore the fact that the disputed article was a means of expression for the interviewee and her son.
In addition, in securing the impugned publication, Ms Coste was motivated by a personal interest, namely obtaining official recognition for her son, as is clearly reflected in the article (…). The interview thus raised a question of public interest, but also concerned competing private interests: that of Ms Coste in securing recognition for her son, which was why she had contacted the media (…), that of the child in having his paternity established and that of the Prince in keeping that paternity secret” (§§ 127-128).
The Court agrees that Ms Coste’s right to freedom of expression for herself and her son was not directly at issue in the present case, as Ms Coste was not a party to the proceedings. The Court emphasises, however, “that the combination of elements relating to Ms Coste’s private life and to that of the Prince had to be taken into account in assessing the protection due to him” (§ 129).
Preventing an individual from disclosing information about his or her personal or social identity would indeed constitute a strong interference with that individual’s personal autonomy. The Grand Chamber’s judgment in Couderc and Hachette Filipacchi Associés v. France shows alert and awareness of this aspect of the case, by distancing itself, like in Bodrožić and Vujin v. Serbia (ECtHR 23 June 2009, § 35), from a “derisory and unacceptable” male-dominated perspective, or from what has been qualified by others “a male-oriented view of society and relationships”.
* Dirk Voorhoof is professor at Ghent University (Belgium) and lectures European Media Law at Copenhagen University (Denmark). He is a Member of the Flemish Regulator for the Media, of the European Centre for Press and Media Freedom (ECPMF) and of the Human Rights Centre at Ghent University. He is the author of a recently published e-book on the case-law of the ECtHR on freedom of expression, media and journalism.