5.  The first applicant, Franz-Olivier Giesbert, is the publication director of the magazine Le Point. The second applicant, Hervé Gattegno, is a journalist with Le Point. The third applicant is the company operating Le Point.
6.  The proceedings against the applicants which form the subject matter of the three applications are related to the events commonly referred to as the “Bettencourt affair”.
7.  Mrs Liliane Bettencourt, principal shareholder of the group L’Oréal, is one of the richest individuals in France. From the late 1990s she made numerous gifts to her friend B., a writer and photographer, totalling several hundred million euros in value.
8.  In December 2007 Mrs Bettencourt’s daughter, Ms Bettencourt‑Meyers, filed a criminal complaint against B., for the offence of undue influence (abus de faiblesse), with the public prosecutor at the Nanterre tribunal de grande instance. A preliminary investigation was opened. In that context numerous interviews were conducted, in particular with individuals close to Mrs Bettencourt, and searches were carried out. In September 2008 B. was taken into police custody.
9.  Without waiting for the outcome of the investigation, Ms Bettencourt-Meyers brought a private prosecution against B. in the Nanterre Criminal Court, on the same charge of undue influence. She sought and obtained the inclusion in the case file of material and reports from the preliminary investigation.
10.  In September 2009 the public prosecutor’s office decided to discontinue the proceedings based on Ms Bettencourt-Meyers’ original complaint.
11.  The case initiated by the private prosecution was first set down for hearing on 3 September 2009, then on 11 December 2009. On that date it was decided to seek a medical assessment of Mrs Bettencourt and the hearing was deferred again to 15 April 2010 (for the subsequent criminal proceedings, see paragraphs 52 and 53 below).
12.  Mrs Bettencourt publicly announced that she was refusing to undergo the assessment ordered by the court. She also filed submissions by way of voluntary intervention, including in the alternative an application to join the proceedings as a civil party in the event that the prosecution was regarded as valid by the court. She argued that the aim of her civil-party application was to persuade the court that her mental faculties were not diminished and that she had made her gifts to B. with all due lucidity.
13.  The developments in the case were widely reported in the press. The offending articles in Le Point were thus published in that context.
14.  On 10 December 2009 the third applicant published, with the second applicant’s byline, a four-page spread under the heading “Investigation into a very dear friend” and with the sub-heading: “Treasure. Did he take advantage of Liliane Bettencourt? [B.] denies it but the finger of suspicion points to him”.
15.  The article referred to various aspects of the case and in particular the very significant gifts made by “the heir of L’Oréal”, for a total of one billion euros, to B. The journalist wrote, quoting the testimony of Liliane Bettencourt’s former accountant: “She too describes the psychological domination imposed on an elderly lady who is more fragile than she may like”. He also inserted a passage from the “prosecution document” which summed up the situation as follows:
“Taking advantage of his influence and Liliane Bettencourt’s weakness, [B.] persuaded her, at a time when her health was declining, to give him sums of money and assets going beyond tokens of friendship.”
16.  The article was full of comments between inverted commas, presented as extracts from statements made to the investigators working under the public prosecutor. It pointed out that the latter had discontinued the investigation in question. Among the quotations were explanations given by B. when he was in police custody in September 2008, and it was claimed by the journalist that those explanations were often contradicted by the facts:
“He swears that Liliane Bettencourt has acted towards him ‘like a patron’. Their first meeting goes back to the 70s but their friendship dates from a portrait he made of her in 1987 ... ‘I was then sufficiently well off that I did not need financial assistance from Mrs Bettencourt’, he retorted to the investigators. ‘I already owned five apartments on rue Servandoni [Paris 6th], a large collection of paintings and had co-ownership of the Brouzet estate [a large estate in the Gard], together with copyright dues and a commission on the sale by Dior of the perfume Poison’. After verification, this inventory seems to be somewhat overstated: in actual fact it was through a series of cheques from the billionaire and the cancellation of astronomical debts to real estate companies owned by him that B. has managed to build up his assets to the point of acquiring seven apartments in the well-to-do neighbourhood of Saint Sulpice. Today the whole complex forms a quaint townhouse with swimming pool, CCTV cameras and secret passages between the bookshelves.
Contradicted by the numbers and dates, the photographer was forced to explain, more humbly, that Mrs Bettencourt wanted him ‘to expand’ in order to ‘install all his works and perhaps set up a museum’. But curiously his benefactor did not even mention such a project during her own hearing on 13 May 2008. B’s explanation: ‘She is a modest woman; she will not say the things that are in the depth of her heart’.
The police investigation also demonstrates the lavishness of his property in the Gard ... ‘Mrs Bettencourt did not contribute to its financing’ he claimed. However, the billionaire’s accountant testified that ‘numerous cheques’ had been signed by her, made out to contractors doing work on the estate, ‘for at least 150,000 euros, and as much as a cheque of 10 million euros in December 2006’.
Several employees testified that around the same time the old lady’s health had deteriorated ... Herein lies the gravamen of the whole case: was the L’Oréal heiress really aware of the extent of her generosity? ...
17.  Those two statements are extracts from the testimony of the “former director of L’Oréal once responsible for the management of Liliane Bettencourt’s assets” and her former accountant. The first spoke of a “hold” over Mrs Bettencourt. He had asked to be relieved of his duties because, he testified, “I ran the risk of being complicit in the misdeeds of Mr [B] by my tacit consent”. The second witness referred to “pressure” on the part of the photographer and testified that he was always “asking for money”. In late 2006 her attention was drawn to the proposed assignment of a life insurance policy (for an amount in excess of 260 million euros). “I tried to reason with Mrs Bettencourt but she was no longer her old self”, recalled the accountant. “I then bumped into B. in the house and said to him ‘you’ve seen the state she is in, you know she is very ill’. He replied ‘never mind, as long as she is not under deputyship she can still sign’”.
18.  The article also contained comments made by Mrs Bettencourt on 13 May 2008, in a box headed: “Exclusive: what Liliane Bettencourt told the police”. The journalist, after quoting extracts from the statement showing that Mrs Bettencourt did not recall the agreements she had signed with B., wrote that “these memory lapses are clearly at odds with the picture that B. would be painting of her to the same investigators”.
19.  In another box the journalist reported on the application for “judicial protection” filed by Mrs Bettencourt’s daughter and quoted an extract from the “report of neurologist P.A.”, who had been “asked by the public prosecutor to examine the billionaire’s medical records”, revealing “a state of vulnerability related to a probable degenerative neurological condition which impaired her individual faculties”.
20.  The article stated that from this episode and many others, the financial brigade investigators, in a report of 1 December 2008, had concluded that there was “a series of sufficiently strong presumptions that the offence of undue influence [had] been committed by B.”; and that the photographer, for his part, had denounced an “odious attack” on a “world-famous artist”. It ended thus: “the court will rule whether the fortune passed to him by Liliane Bettencourt was a windfall or a swindle – either way, it’s a masterstroke”.
21.  On 4 February 2010 the third applicant published, with the second applicant’s byline, an article indicated on the full front cover of the magazine under the headline “Bettencourt affair: how to gain one billion (without any effort)”. The subheadings announcing the article read: “the unbelievable story of a society photographer who made a fortune by ‘seducing’ Liliane Bettencourt, the richest woman in France” and “the accusations of Madam’s employees”. A photo-montage showing Mrs Bettencourt “with her friend B.” also appeared on the cover.
22.  The subject of the article, which extended to eight pages, was indicated as follows: “Bettencourt affair. Has the richest woman in France been conned by the photographer [B.]? Some of her former employees have said as much to the police. Le Point reveals their testimony and the secrets of this incredible high-society melodrama”. The article began as follows:
“Is it about money or sentiment? A quarrel over an inheritance or a question of principle? A settling of family scores or the most perfect scam? All of these things put together, perhaps and much more, because the millions slip away by their hundreds in an atmosphere redolent of an Agatha Christie novel and a setting worthy of Scott Fitzgerald ... Even the trial – the inevitable epilogue – will resemble a high-society event: on 15 and 16 April, the court of Nanterre will look into the incredible generosity, for almost a decade, of the richest woman in France towards the person she has made her favourite, the photographer [B.].”
23.  The article continued as follows:
“Since the billionaire’s daughter has taken her case to the courts, accusing her mother’s protégé of the offence of ‘undue influence’, ripples of disgust have been felt along the majestic avenues of Neuilly and beyond – the high society of Paris in finance, industry and politics – concerned that it may one day be regretted that no one had seen anything, or at least said anything.
For the investigation has revealed the existence of lavish gifts, apparently totalling around 1 billion euros. Could such riches pass unnoticed? There’s a disturbing detail: the largest sums were assigned to B. in the spring of 2003 and in the summer of 2006, at a time when Liliane Bettencourt’s health was declining sharply ...
Guru. Much testimony has come to light since then – Le Point is exclusively publishing several extracts (see the following pages). Housemaids, nurses, secretaries, the chauffeur, accountants, all describe ‘the hold’ that [B.] had over the L’Oreal heiress (aged 87), his own individual way of soliciting her generosity, the equivocal aspects of his behaviour. Before the court, the succession of these indignant employees will be reminiscent of the spectacle in the von Bülow affair – the trial of the libertine and cynical American aristocrat who was accused, in the early 80s on Rhode Island, of poisoning his wife so that he could take over her fortune. But even that scenario would not be the worst for [B.]: convicted at first instance, von Bülow was nevertheless acquitted on appeal ...
For the time being, the photographer confronts the suspicions with sardonic contempt. ‘To make a work of one’s life, that’s what matters’, he proclaimed in Le Monde, describing the charges against him as ‘pathetic rumours’. His benefactor? ‘An intelligent woman who knows how to choose men, to take risks’, he told the police, sweeping a little too quickly under the carpet the doubts about her state of health. To be sure, the heiress affirmed a year ago, in Le Journal du dimanche, that she was attached to [B.] and that she had no time for gossip. ...
She has since shut herself away, leaving her lawyers to speak in her place, refusing any medical assessment and cutting short her appearances at receptions or ceremonies. This silence has only served to reinforce the impression of a woman under influence.”
24.  In the middle of the article, under the heading “Exclusive: the women who accuse”, there were long extracts (over three pages) from statements of employees who worked at Mrs Bettencourt’s house (accountant, secretary, chambermaid, nurse) that had been given during the preliminary investigation. The following statements were highlighted in particular:
“It was as if [B.] had woven his web around Mrs Bettencourt.”
“He answered me: ‘As long as she is not under deputyship she can sign.’”
“[B.] takes advantage of Madame’s weakness to benefit from her generosity.”
25.  After referring to remarks by B. and by Mrs Bettencourt in the press, the article added: “a number of statements paint a less idyllic picture: under oath, employees and servants mentioned pressing requests for money going as far as harassment, harsh language, and various schemes bordering on the sordid. ...”
26.  Under an intermediate heading “Strategy” the article then mentioned and partially quoted documents that had been discovered by the financial investigators at B.’s home in Paris.
27.  The article ended with a small insert indicating that B. had refused to respond to Le Point, preferring to “reserve his answers for the judges”.
28.  On 11 February 2010, following the publication of 4 February 2010, Mrs Bettencourt brought urgent proceedings against the applicants in the Paris tribunal de grande instance claiming a manifestly unlawful nuisance under Articles 808 and 809 of the Code of Civil Procedure ... She asked the urgent-applications judge to find that the reproduction of procedural documents from the file of the preliminary investigation initiated by the Nanterre public prosecutor breached section 38(1) of the Law of 29 July 1881 on freedom of the press (“section 38”, ...), which prohibited the publication of documents from a criminal case file before they had been read out in open court, and Article 9 of the Civil Code, guaranteeing the right to respect for private life ... She requested that a court-ordered notice be published in Le Point, on pain of a coercive fine, and that the applicants be ordered to pay her, by way of an advance, compensation for her non-pecuniary damage, on account of her portrayal as an individual with diminished intellectual faculties who had been duped.
29.  The applicants disputed Mrs Bettencourt’s standing to bring the proceedings, as prosecution in respect of the section 38 offence could only be initiated by the public prosecutor under section 47 of the same law ... On the merits, they claimed that it was contradictory, on the one hand, to require journalists to establish the veracity of the information that they published and, on the other, to penalise them for substantiating their investigation.
30.  In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance found that Mrs Bettencourt had standing in so far as she was arguing that the publication of the impugned documents had, on the basis of that provision, caused her personal damage. The judge indicated that while section 47 of the 1881 law reserved the prosecution of the section 38 offence for the public prosecutor, an individual who claimed to have sustained pecuniary or non-pecuniary damage as a result of a publication was entitled to act as a civil party in the proceedings or to bring a case before the urgent-applications judge under Article 809 of the Code of Civil Procedure, in order to seek the requisite protective or remedial measures to put an end to the unlawful nuisance resulting from such publication, or to request a sum by way of an advance. The judge explained: “It suffices for the publication of the documents prior to their reading in open court to have caused the person actual and direct damage, regardless whether or not the person is a party to the proceedings in which the documents are to be presented”. He ordered the applicants jointly to pay an advance of 3,000 euros (EUR) and the same sum in procedural expenses under Article 700 of the Code of Civil Procedure.
31.  As to the application of section 38 of the 1881 Act, the judge took the view that the statements by employees of Mrs Bettencourt (paragraph 24 above) constituted “procedural documents” which were part of the preliminary investigation and that, even though it had been discontinued, those documents had been joined to the criminal proceedings now pending, after their transmission had been sought and obtained by Ms Bettencourt‑Meyers in support of her own private prosecution. He added that those statements all helped the case for the prosecution, as indicated on the magazine’s cover, “the accusations of Madame’s employees”, and observed as follows:
“... the publication of long passages emanating from insiders helps to give the reported facts an appearance of authenticity and objectivity (that the article does not seek to nuance but, on the contrary, to reinforce); the reader is thus led to regard those facts as proven, because they are presented through the prism of a journalist’s analysis, which is bound to contain a degree of subjectivity or opinion. For those reasons, the alleged breach of section 38 cannot be combined with the breaches under Article 9-1 of the Civil Code (presumption of innocence) or Article 9 of the Civil Code (private life) or section 29 of the Law of 29 July 1881 [defamation proceedings, ...], nor can it result in redress on the basis of those separate legal provisions.”
The judge concluded that the publication was capable of infringing the rights of Mrs Bettencourt as it portrayed her, at a time when the Nanterre Criminal Court had not yet begun to examine the criminal cases, as a woman who was manipulated and weak, a description that she categorically denied.
32.  The judge further found that the applicants were not justified in relying on the provisions of Article 10 of the Convention and the necessities of information. In this connection he indicated that section 38 sought mainly to preserve the independence and orderly conduct of the judicial process, in addition to protecting the rights of the persons concerned, particularly by guaranteeing the presumption of innocence. He emphasised the limited and temporary nature of the restriction on freedom of expression, as the legislation did not prevent analysis of, or comments on, procedural material, or the publication of information gleaned from the proceedings themselves, but only prohibited the reproduction of documents which were intended for public disclosure in the context of a judicial process surrounded by safeguards. These safeguards include respect for defence rights and the principle of adversarial proceedings, “which could not be ensured by a prior, isolated and partial media report”. The judge went on to explain as follows:
“... the impugned restriction cannot be compared to the case of disclosure of professional secrets or of secrets from the preliminary or judicial investigation, on account of the possession by a journalist of documents covered by secrecy and used in publications imparting information to the general public, in so far as the journalist, who is not bound [by those secrets], is required to possess such documents in order to justify the veracity of the facts reported or the seriousness of his investigation, but also to use them in compliance with the applicable legislation.”
33.  All of the claims submitted by Mrs Bettencourt alleging a breach of her privacy were dismissed on the ground that such a breach had not been sufficiently established, having regard to the general public’s right to be informed, and interest in being informed, of current affairs or events in the general interest:
“... the claimant has not relied on any specific breaches of her private life which would go beyond the information that it is permitted to mention in connection with the criminal case before the court of Nanterre, as Le Point did not, in particular, provide details about any health problems she may have.”
34.  The applicants appealed. They argued in particular that the procedural documents in question, which had been included in the case file solely on the initiative of the claimant, and not on that of the public prosecutor, could not be regarded as carrying the degree of authority which justified, by derogation to the principle of freedom of expression, the prohibition imposed by section 38. They further emphasised that neither Mrs Bettencourt’s right to a fair hearing, nor any undermining of the authority or impartiality of the courts, was at stake.
35.  In a judgment of 19 March 2010, the Paris Court of Appeal upheld the decision of the court below, in the main, and raised the amount of the advance to EUR 10,000, in addition to charging EUR 5,000 for the costs of the appeal proceedings. It confirmed that the witness statements “clearly” constituted “procedural documents”, even though the preliminary investigation had been discontinued, since they had been transmitted by the public prosecutor at the request of the civil party and thus formed an integral part of the criminal proceedings. In the court’s view, “the fact that they were transmitted at the request of the civil party and not on the initiative of the public prosecutor bore little relevance in this connection”. It concluded that the publication of long passages from those statements constituted a violation of section 38 and thus an unlawful nuisance within the meaning of Article 809 of the Code of Civil Procedure. It added as follows:
“... the requirement for the journalist to verify his sources and to compare the various material available to him on a given subject in the context of a serious investigation, before imparting information to the public, does not mean reproducing verbatim the documents used for his investigation, where, as in the present case, such publication is prohibited under press legislation of which he cannot be unaware.”
The court concluded that the applicants’ submission that section 38 should be declared incompatible with Article 10 of the Convention was unfounded. It took the view that Mrs Bettencourt was entitled to claim non-pecuniary damage as she had been portrayed as:
“a woman in a weak mental state, being easy to manipulate and under the influence of [B.], which the reader is all the more likely to regard as the truth as [the observations] are presented as emanating from individuals who have played a particular role, making them privileged observers of her private life.”
Lastly, the Court of Appeal confirmed that there had been no breach of Mrs Bettencourt’s privacy in the following terms:
“... the mere mention of Mrs Bettencourt’s mental health in the body of the article, without any details falling within her private sphere, and in the testimony reproduced, which was mainly about the conduct and manoeuvres attributed to [B.], does not suffice to establish any particular breach of the respondent’s privacy that would go beyond the limits of legitimate information that the public is entitled to expect about a case which, already being widely covered by the media, is before the courts ....”
36.  The applicants appealed on points of law. In their grounds of appeal they argued, under Article 10 of the Convention, that they had a duty to inform the public about a case pending before the courts which had been revived after a private prosecution, following its discontinuance by the public prosecutor, and which had given rise to wide media coverage especially on account of the personality and wealth of Mrs Bettencourt; that the judgment of the Court of Appeal had found against them solely for publishing the statement extracts and not on account of their content; that there had been no impairment of the interests protected by section 38(1) because Mrs Bettencourt was not the defendant in the proceedings; that there was a manifest contradiction in the Court of Appeal’s position, as it had declared Mrs Bettencourt’s action admissible on the basis of the damage sustained, while taking the view that she had not been portrayed as a weak and manipulated woman in terms of her right to respect for her private life.
37.  In a judgment of 28 April 2011 the Court of Cassation dismissed the applicants’ appeal and ordered them to pay Mrs Bettencourt the sum of EUR 4,000 in costs. It gave the following reasons for its decision:
“... the judgment observes that long extracts were published from the statements taken during the preliminary investigation ..., in which [Mrs Bettencourt] was portrayed as a manipulated and weak woman; proceeding with a correct application of Article 10 of the Convention ..., the Court of Appeal was able, without contradicting itself, to conclude from that publication, since the documents drawn up by the police during an investigation are procedural documents within the meaning of section 38 of the Law of 29 July 1881, that [Mrs Bettencourt] was justified in claiming, solely on the basis of that publication, that she had sustained personal damage ...”
38.  On 11 February 2010 B. brought urgent proceedings against the applicants in the Paris tribunal de grande instance following the publication of 4 February 2010, arguing that it had caused him a manifestly unlawful nuisance, infringing both his copyright to the photographs illustrating the article and his defence rights, including his right to be presumed innocent.
39.  In a decision of 2 March 2010, the Vice-President of the Paris tribunal de grande instance, in addition to endorsing the reasoning already set out in paragraphs 31 and 32 above, took the view that the impugned publication could have the alleged effects, infringing B.’s right to a fair hearing and his right to the presumption of innocence. B.’s claim concerning the infringement allegedly caused by the reproduction of photographs was rejected as falling outside the remit of the urgent proceedings judge. The judge ordered the publication of a notice inside the magazine together with an indication of it on the cover (to take up one half of the page in bold type, under the heading “Judgment against Le Point in proceedings brought by [B.]”) and on the weekly magazine’s website. The applicants were also ordered jointly to pay B. an advance of EUR 3,000 on compensation for his non-pecuniary damage, together with an equivalent sum by way of procedural expenses.
40.  The applicants appealed.
41.  In a judgment of 19 March 2010 the Paris Court of Appeal upheld the decision appealed against, mainly in the same terms as those set out in paragraph 35 above. It reiterated that the witness statements, “without engaging in any extensive interpretation of [section 38]”, could be characterised as procedural documents, even though the investigation had been discontinued: “the fact that they were transmitted at the request of the private prosecutor and not on the initiative of the public prosecutor is of little relevance in this connection because they support the prosecution case”. It went on to find that “consequently, the mere publication of substantial extracts from those statements, before they had been referred to or read out in open court, [had] indeed constituted a violation of section 38 of the Law of 29 July 1881 and therefore an unlawful nuisance”. The Court of Appeal further found as follows:
“... the four statements thus presented to the public portray [B.] as a devious and unscrupulous individual, using seduction, manoeuvres and psychological pressure to persuade Liliane Bettencourt to grant him substantial and frequent gifts, at a time when she was weak and when her husband’s state of health had declined;
... the reader is all the more likely to consider these statements to be true, supporting as they do the accusation against [B.] before the Nanterre Criminal Court, as they are presented as emanating from individuals who, as a result of the services they rendered to her (nurse, chambermaid, secretary), played a particular role through which they became privileged observers of her private life;
... the reader is thus led to believe in the accusation, even before the court hearing the case has been able to reach its decision, in conditions that breach the respondent’s right to be presumed innocent and his defence rights ...”
42.  The applicants lodged an appeal on points of law.
43.  In a judgment of 7 July 2011 the Court of Cassation dismissed their appeal in the same terms as those of its judgment of 28 April 2011 (see paragraph 37 above).
44.  On 9 March 2010, B. brought proceedings against the applicants on the merits before the Paris tribunal de grande instance seeking redress for the damage sustained on account of the publication of the articles of 10 December 2009 and 4 February 2010, in breach of section 38(1) of the 1881 Act.
45.  In a judgment of 21 June 2010, that court dismissed all of B.’s claims. On the admissibility of his suit, it observed that the applicants were correct to assert that an individual who claimed to be the victim of the offence provided for under section 38 of the 1881 Act was not authorised to bring a private prosecution on that basis. It pointed out that, by contrast, the provisions of that Act did not preclude the injured party from bringing proceedings in the civil courts, as only one section of that Act (section 46) prohibited the bringing of civil proceedings separately from a public prosecution, namely in cases of defamation against public authorities, State institutions and civil servants. After observing that section 38 usefully contributed to preserving the orderly functioning and impartiality of the justice system and to guarantee due process, since the full and verbatim publication of documents from a criminal file before the trial could hinder the conduct of pending investigations or influence individuals who might subsequently be called upon to testify, or even lay magistrates who might have to adjudicate upon the case, the court gave the following reasons for its decision:
“... The prohibition that it establishes must not, however, restrict the ability of journalists to report on criminal cases, even those which have not yet been publicly examined by a court, and specifically those which, raising issues of general interest, involving significant interests, or concerning people with high-level responsibilities, especially in political, economic or artistic fields, particularly deserve to be brought to public attention.
The application of this legislation cannot, in particular, have the effect of precluding journalists from imparting to their readers, in such a case, all or part of the documentary resources from which they derived their information, in order to establish its credibility, or which substantiate their commentary and analysis, in order to submit them for open discussion. This is the case here: extracts ... from reports which have been drawn up by the police acting on the instructions of the public prosecutor and which have been appended, after the discontinuance of the proceedings for which they were produced, to the file of further proceedings brought directly by a civil party in a criminal court – those extracts, therefore, were included by [the second applicant] in two successive articles which were each the result of a journalistic investigation and sought to present readers with information, analysis and comments on a criminal case that would soon be adjudicated upon by a court, that involved considerable financial interests and concerned one of the richest individuals in France and a photographer and writer who has, as he himself boasts, ‘undeniable success and notoriety’.
In the first of the impugned texts, short quotations from procedural documents, which are reproduced in quotation marks in the body of the article and are therefore fully integrated into the journalist’s writing, mention certain facts and offer an analysis thereof. In the second text, the three pages of extracts from procedural documents are included in a broader editorial presentation, consisting essentially of a four-page spread and a large photograph of the person concerned, from which they are indissociable; the journalist expressly refers to those extracts in his article, analysing them and basing his conclusions on them.
If one were to accept, in those circumstances, that these two bodies of text should be examined by this court only on the basis of the strict-liability offence under section 38 of the Freedom of the Press Act, that would lead, as the respondents rightly argue, to preventing them from initiating the debate that is warranted by the journalist’s work, within which the impugned extracts are merely one element; and they would be deprived, in the present case, of the defences made available by law to persons who are prosecuted for defamation or for a breach of the right to be presumed innocent, in other words precluding them from proving the veracity of the allegations or, at least, the journalist’s good faith, and from submitting argument to the effect that the impugned texts do not contain any final conclusions expressing a biased view that the person in question is definitely guilty.
It should be noted in this connection that the claimant directs his main criticism, in his writ of summons, against the comments and analyses that the journalist has been led to write, under his own name, by the procedural documents cited .... and that he mainly reproduces in that writ only those comments and not the quotations that he is supposed to be challenging. It should be observed in particular that the claimant complains that the statements from which extracts were quoted – or in reality the journalist’s analysis thereof – breached his right to be presumed innocent and were presented as ‘damning’ and ‘particularly incriminating’.
It can be concluded that B. himself admits that, absent his chosen basis of action, he had other options at his disposal: a private prosecution or civil proceedings for defamation, or a civil action for a breach of his right to be presumed innocent; both of those courses of action would have entailed fair proceedings, ensuring respect for the equality of arms, and he was not therefore deprived of his right to have access to a court in order to secure respect for his rights.
In those circumstances, the upholding in the present case of the claims that he has submitted under 38 would constitute a restriction of freedom of expression devoid of any necessity in a democratic society.”
46.  In a judgment of 22 February 2012, the Paris Court of Appeal overturned that judgment. It found that the impugned publications infringed B.’s right to a fair trial with respect for his defence rights, including the right to be presumed innocent, and breached section 38 of the 1881 Act. It ordered the applicants jointly to pay B. the sum of EUR 1 for each publication by way of compensation and EUR 6,000 in expenses under Article 700 of the Code of Civil Procedure. It also ordered the publication, on pain of a coercive fine, of a notice containing the operative provisions of the judgment in Le Point and on the magazine’s website.
47.  The Court of Appeal explained that the assessment of the offending publication “clearly” went beyond “the framework of that of so-called ‘procedural’ offences” and that it would have to be carried out with regard to Article 10 of the Convention and to the question whether the interference with the applicants’ freedom of expression was necessary to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary.
48.  As regards the article of 10 December 2009, the court noted that it had been published the day before B.’s appearance in the criminal court and that it clearly suggested that he was guilty, as he was portrayed as an individual against whom there was “a series of sufficiently strong presumptions [that he had committed] the offence of undue influence”. It took the view that the court below had wrongly regarded the aim of informing the public as prevailing over the means used, namely illegal methods whereby extracts had been selected from statements collected in an investigation in order to show that B. had committed the offence of undue influence, whereas there had been no judicial decision to that effect. It could be understood by the reader that B. was not telling the truth about Mrs Bettencourt’s mental health and that his guilt was “doubly suggested” in the introduction (citing an extract from the prosecution document, which fell under section 38) and in the conclusion. It added as follows:
“... The reasoning given by the court below is tantamount to legitimising the practice, which is legally prohibited, of publishing extracts from an investigation file before they are read out in open court, first, on account of the interest of the subject, and secondly, while noting B.’s claim that his right to be presumed innocent was breached.
The court cannot agree with the reasoning of the court below ...
The article of 10 December 2009, in so far as it portrays [B.] as having committed the offence of undue influence vis-à-vis Mrs Bettencourt in the above-mentioned context, clearly breaches his right to a fair trial including to the presumption of innocence.
That breach, according to the article, is exclusively based on the publication of extracts from statements which legally speaking are not addressed to journalists when they are not parties to the proceedings.
The court would reiterate that, for a reader who has an average knowledge of the courts, documents from judicial investigations take on particular credibility and an undeniable evidential value.
The court reaches the conclusion that the date of publication, the choices of quotation, and the portrayal of [B.] as guilty according to the documents from the judicial investigation, even though it had been discontinued, had the consequence of influencing his exercise, which was legally and conventionally guaranteed, of his defence rights, which meant that before being heard by a court he should not have been portrayed as guilty of the offence of undue influence against Mrs Bettencourt. [B.] thus finds himself required to give explanations on evidence against him which has not yet been debated in a court of law and which has been taken from an investigation, then still secret, conducted under the supervision of a judge ...
It is not befitting to consider, as did the court below, that [B.] had other courses of action available to him. Being entitled to bring his case to the civil court under section 38, it cannot be suggested to the claimant that he should have opted for other types of proceedings on the erroneous ground that his action contravenes Article 10 of the Convention ...”
49.  As regards the article of 4 February 2010, the Court of Appeal took the view that the editorial choices – front cover of the magazine, presentation of whole swathes of statements, highlighting of the exclusive publication of the witness statements – constituted a communication of some importance directly aimed at B. who had not been able to explain before a court his position “on the accusations of the staff”. It added that the publication portrayed B. “as being accused by third parties in conclusive terms” and that the article was “a repeated incrimination of [B.] two months before a hearing at which the ‘epilogue’ of the case was supposed to take place”.
50.  The applicants appealed on points of law. In their grounds of appeal, they argued in particular that the ban on publishing procedural documents was a matter of defence of the general interest falling within the sole jurisdiction of the public prosecutor, and that a private person could not seek redress for damage on that basis. They added that their argument was supported by the fact that B. could have, under Article 9-1 of the Civil Code, used another legal remedy to ensure the protection of his interests and that the interference with freedom of expression and of information had therefore not been justified or proportionate.
51.  In a judgment of 29 May 2013 giving the following reasons, the Court of Cassation dismissed the applicants’ appeal:
“Having found, first, that the article of 10 December 2009 was based on an analysis of extracts from various statements taken by the criminal investigation police, in order to portray [B] as having taken advantage of Mrs Bettencourt’s weakness, the day before his appearance before a criminal court, which was to rule on the relevance and merits of the accusations made against him by her daughter, and, secondly, that the article of 4 February 2010, based on a partial reproduction of statements taken by the criminal investigation police, seeking to portray [B.] as being accused by third parties in conclusive terms in order to lead the reader to believe that the case against him was made out, two months before a hearing which would constitute, according to the article, ‘the epilogue of the case’, the Court of Appeal ... reached the conclusion that the publication had infringed [B.]’s right to a fair trial with due respect for his right to be presumed innocent and his defence rights; ...”
52.  After June 2010 there were many developments in the case, with its various political and financial repercussions, and they were widely reported in the media. On 17 November 2010 the Court of Cassation ordered the transfer of all the aspects of the Bettencourt case to the Bordeaux tribunal de grande instance. Mrs Bettencourt’s daughter withdrew her claims but the criminal proceedings were later resumed, and on 14 December 2011 B. was placed under judicial investigation for the offence of undue influence.
53.  In a judgment of 28 May 2015, B. was found guilty of that offence and sentenced to three years’ imprisonment, of which six months were suspended, a fine of EUR 350,000 and the payment of EUR 158 million in damages awarded to Mrs Bettencourt. In a judgment of 24 August 2016, the Bordeaux Court of Appeal upheld the judgment in respect of the prosecution case and varied the sentence, giving B. a four-year suspended prison sentence, fining him EUR 375,000 and ordering the confiscation of part of his property. The Court of Appeal also took the view that it did not need to make an award of damages on account of settlements that had been agreed between the parties.
... 59.  The Court refers to Recommendation Rec(2003)13 of the Council of Europe’s Committee of Ministers to the member States on the provision of information through the media in relation to criminal proceedings, adopted by the Committee of Ministers on 10 July 2003 (see Bédat v. Switzerland [GC], no. 56925/08, § 21, ECHR 2016).