CEDH · PRESS;GENERAL;ENG — 18 mai 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS   250 18.5.2004   Press release issued by the Registrar   CHAMBER JUDGMENT IN THE CASE OF PLON (SOCIETE) v. FRANCE   The European Court of Human Rights has today notified in writing a judgment [1] in the case of Plon (société) v. France (application no. 58148/00).   The Court held unanimously that there had been: no violation of Article 10 of the European Convention on Human Rights (freedom of expression) on account of the injunction prohibiting distribution of the book “ Le Grand Secret ” issued as an interim measure by the urgent applications judge; a violation of Article 10 of the Convention on account of the order maintaining that prohibition in force after 23 October 1996 made by the civil court which ruled on the merits.   Under Article 41 of the Convention (just satisfaction), the Court awarded the applicant company 26,449.87 euros for costs and expenses.   (The judgment is available only in French.)   1.     Principal facts   The applicant, a publishing company named Plon, is a legal entity under French law whose registered office is in Paris.   In November 1995 Plon acquired publishing rights in respect of a book entitled “ Le Grand Secret ”. It had been written by a journalist and a Dr Claude Gubler, who had been the private physician of President Mitterrand for a number of years, and it gave an account of the relations between the two men, describing how Dr Gubler had organised a medical team to take care of the President. It also mentioned the difficulties Dr Gubler had encountered in trying to conceal his patient’s illness, cancer having been diagnosed shortly after Mr   Mitterrand’s election in 1981, although he had given an undertaking to publish a health bulletin every six months.   Following President Mitterrand’s death on 8 January 1996 the book’s authors and Plon decided to postpone publication. However, since Dr Gubler considered that as matters stood his professional competence had been called into question, they decided to publish “ Le Grand Secret ” on 17 January 1996. On the following day Mr Mitterrand’s widow and children applied to the urgent applications judge, who issued an injunction on 18   January 1996 prohibiting the book’s distribution as an interim measure. The injunction was upheld by the Court of Appeal.   On 23 October 1996 the Paris tribunal de grande instance , ruling on the merits of the case, held that by disclosing information covered by the rules of medical confidentiality Dr Gubler, Plon and Plon’s managing director, Mr Olivier Orban, had committed a wrongful act incurring civil liability. It accordingly ordered the ban on publication of “ Le Grand Secret ” to remain in force and the defendants jointly to pay Mrs Mitterrand 100,000 francs (FRF) and each of her three children FRF   80,000 in damages. That judgment was upheld on appeal on 27 May 1997 in so far as it concerned the liability of Dr Gubler and Plon. By a judgment of 14 December 1999 the Court of Cassation dismissed an appeal on points of law lodged by Plon and Mr Orban.   2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 9 June 2000 and declared admissible on 27 May 2003.   Judgment was given by a Chamber of 7 judges, composed as follows:   Loukis Loucaides (Cypriot), President , Jean-Paul Costa (French), Corneliu Bîrsan (Romanian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Mindia Ugrekhelidze (Georgian), Antonella Mularoni (San Marinese), judges , and also Sally Dollé , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 10 of the Convention, the applicant company submitted that the order forbidding it to continue distribution of “ Le Grand Secret ” and the order requiring it to pay what it considered to be “exorbitant” damages had infringed its right to the freedom of expression.   Decision of the Court   The Court noted that the order against the applicant company constituted interference with its right to freedom of expression. It considered that there was no doubt that Plon must have known that the book contained revelations which might be covered by the rules of medical confidentiality and must have been “reasonably” able to foresee the likely legal consequences of its publication for the company. Consequently, the interference in issue had been prescribed by law within the meaning of Article 10 of the Convention.   Both the measures prohibiting distribution of “ Le Grand Secret ”, the injunction and the order made after trial on the merits, had been intended to protect the deceased president’s honour, his reputation and the intimacy of his private life. In addition, it was precisely because many items of information revealed in the book were legally confidential that they had been capable of infringing the rights of others. Consequently, the interference complained of had pursued one of the legitimate aims set out in Article 10 of the Convention.   As to whether the interference met a “pressing social need”, the Court noted that the publication of “ Le Grand Secret ” had taken place in the context of a general-interest debate which had already been going on for some time in France about the right of the public to be informed about serious illnesses of the head of State, and the aptitude of a person who knew he was seriously ill to hold that office. In addition, the secrecy imposed by the President about his illness and its progress, as described in the book, raised the public-interest issue of the transparency of political life.   The injunction The urgent applications judge had given his ruling on the day following publication of “ Le Grand Secret ”, which had taken place barely ten days after Mr Mitterrand’s death. On a date so close in time to the President’s death the distribution of a book which, in breach of the rules of medical secrecy, presented him as having knowingly lied to the French people could only have deepened his family’s grief. Moreover, Mr   Mitterrand’s death, coming after a long fight against his illness and a few months after he left office, had aroused strong emotions among politicians and the public, so that the damage to his reputation done by the book was particularly serious.   That being so, the Court considered that the interim ban on distribution of “ Le Grand Secret ” until such time as the relevant courts had ruled on its compatibility with medical confidentiality and the rights of others could be regarded as “necessary in a democratic society” for the protection of the rights of President Mitterrand and his heirs and successors.   The measures ordered after trial on the merits The Court considered that the finding that the applicant company was civilly liable and the order requiring it to pay damages had been grounded on relevant and sufficient reasons. However, by that time keeping the ban on distribution of “ Le Grand Secret ” in force no longer met a “pressing social need” and was therefore disproportionate in relation to the aims pursued. The ruling had come more than nine months after President Mitterrand’s death in a context which was different from the one in which the interim measure had been ordered, mainly because of the time that had elapsed since then.   In that connection, the Court considered that once medical confidentiality had been breached and the book’s author had been found to have committed criminal and disciplinary offences, the passage of time had to be taken into account in order to be able to assess whether such a serious measure as a blanket ban on a book, as in the present case, was compatible with the freedom of expression. Moreover, at the time when the judge ruled on the merits 40,000 copies of the book had already been sold, it had been published on the internet and it had been the subject of much comment in the media. Accordingly, preserving medical confidentiality could no longer constitute a preponderant imperative. Furthermore, the measure appeared all the more disproportionate in that it had been imposed in addition to the order requiring Plon to pay damages to Mr Mitterrand’s heirs and successors.   Consequently, the Court considered that when the tribunal de grande instance gave judgment there was no longer a pressing social need justifying the continuation in force of the ban on distribution of “ Le Grand Secret ”. In the light of that conclusion, the Court considered that it was not necessary to examine separately the applicant company’s complaint that it had been ordered to pay “exorbitant”damages. ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.