CEDH · CASELAW;CLIN;ENG — 18 mai 2004

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France - 58148/00 Judgment 18.5.2004 [Section II] Article 10 Article 10-1 Freedom of expression Definitive suspension of distribution of a book containing information relating to a late Head of State and covered by medical confidentiality: violation Temporary prohibition on distribution of book: no violation Facts : The applicant company had acquired publishing rights in respect of a book entitled “ Le Grand Secret ”   from a journalist and a Dr Gubler, who had been private physician to François Mitterrand, President of the French Republic, for several years. The book dealt with the cancer suffered by President Mitterrand from the beginning of his first term of office, about which the public was not officially informed until much later. The book described the relations between President Mitterrand and his doctor, and the difficulties Dr Gubler had encountered in concealing the illness, given that the President had undertaken to issue a health bulletin every six months. The book was published on 17   January   1996, about ten days after President Mitterrand's death. The following day, the urgent applications judge, to whom the President's widow and children had applied, issued an interim injunction prohibiting its continued distribution. The court of appeal upheld the injunction and gave the applicants a month to apply to a trial court, failing which the measure would cease to have effect on expiry of the said period. The applicants applied to the trial court for an order prohibiting resumption of the publication of the book. In a judgment of October 1996 on the merits of the case, the Paris tribunal de grande instance maintained the ban on distribution of the book and ordered Dr Gubler, the applicant company and its legal representative jointly to pay damages to the President's widow and children. The court of appeal upheld the continued ban on distribution of the book, as well as the order to pay damages. It noted that the book disclosed information covered by medical confidentiality and emphasised that, under Article 10 of the Convention, the exercise of freedom of expression could be subject to certain restrictions. The applicant company's appeal on points of law was dismissed. Law : Article 10 – The applicant company had suffered “interference” as a result both of the interim injunction and the subsequent order prohibiting distribution of the book which it had published, and of the order to pay damages on account of this publication. Those measures had been reasonably foreseeable and had pursued legitimate aims, namely “to prevent the disclosure of information received in confidence” and to protect “the rights of others”. As to their necessity in a democratic society, the Court made a distinction between the interim and the final measure. The former had been justified, since it had been imposed barely eleven days after President Mitterrand's death, when emotion among politicians and the public was still strong, the damage done by the book to the President's reputation was serious and its distribution so close to the time of his death could only deepen the suffering of his family, who had appealed to the urgent applications judge in a context of grief. The interference had also been proportionate to the aims pursued since the validity of the measure had been reasonably limited in time. Conclusion : no violation (unanimously). On the other hand, the decision in October 1996 to maintain the ban on the book's distribution, although based on relevant and sufficient reasons, had no longer met a “pressing social need”. This ruling had come nine and a half months after the President's death; the context was different from that in which the urgent applications judge had ruled. The greater the period of time which had elapsed, the less pressing the need to prevent the family's legitimate grief from being deepened; at the same time, the public interest in discussion of the history of the President's two terms of office was taking precedence over the requirement to protect the President's right to medical confidentiality. Once the latter had been breached, the passage of time had to be taken into account in considering a measure as serious as a blanket ban on a book. Moreover, when the final measure was taken, 40,000 copies of the book had already been sold and it had been published on the internet and been the subject of much comment in the media, so that most of the information it contained was no longer confidential. Accordingly, preserving medical confidentiality could no longer constitute a preponderant imperative. In short, the continuation of the ban beyond October 1996 had no longer been justified by a “pressing social need”. Conclusion : violation (unanimously). Article 41 – The Court made an award in respect of costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes