AFFAIRE HACHETTE FILIPACCHI ASSOCIES c. FRANCE - Statement -

A decision entered by the European Court of Human Rights is highly alarming for picture professionals, agencies and media in Europe.


We find highly alarming the decision entered on June 14, 2007 by the European Court of Human Rights, concerning the photograph of murdered French Prefect Claude Erignac, lying in a street in Ajaccio, without any blood stain or indecent detail. The ECHR decision confirms the decisions entered by French courts and sentencing Paris Match Magazine and concludes that French courts have not breached Article 10 of the European Convention on freedom of expression and information.

Indeed, this decision is a sudden and unexpected reversal of the liberal case law distilled by the ECJ, as emphasized, in a highly critical manner, by the two judges whose minority opinion is attached to the decision.

In fact, it is necessary to recall that, for approximately ten years, the EHCR’s liberal case law, which has given precedence to the right to information in writing and through pictures, has influenced courts and in particular French and German courts, as regards the role and importance of new pictures as an information medium, which is both legitimate and necessary.

In particular, because of the influence of the provisions of the European Convention on Human Rights, the French Cour de Cassation had recognized the legitimacy of news pictures showing the victims of the terrorist attack at the St Michel RER station in 1995. At the time, this debate had turned into heated polemics, commented upon by Roger Thérond in Paris Match, eventually leading to a final ruling in favor of the freedom of the press and pictures.

Since that time, French courts have held it legitimate to publish photographs (even violent ones) linked to the news, provided that such pictures did not impair the dignity of the individuals shown.
It is necessary to indicate that all pictures of terrorist attacks and disasters have, since the said RER St Michel decision, been found legitimate during the proceedings that were instituted by the victims or their families.

Recently, the ECHR has had the opportunity to impose limits on the freedom to use photographs in the dispute between Princess Caroline of Monaco and Bunte Magazine, although this controversy had emerged in a totally different environment and was not at all related to a news context. The Court had thus found unlawful the articles and the picture showing the princess in private activities in respect of which she thought that she was sheltered from the public eye, insofar as she is not a public person, and the topic did not cover any general interest or news issue likely to generate the public’s interest.

In the instant case, Paris Match had been sentenced by the Cour de Cassation for impairing the dignity of an individual.

However, the said decision was not justified, as it was not proved that the late Prefect’s dignity had been impaired, unless it was alleged that the notion of dignity is subjective and that any representation of a victim, even where the same is shown decently and without any desire to shock, would be a violation of the victim’s dignity.

What should we think then of famous photographs that, in the same manner as for Prefect Erignac, who died because of his official position, have shown illustrious persons and have marked the public mind since the assassination of President John Kennedy and his brother Robert, a presidential candidate?

Thus, the case before the ECHR was hinging on this dignity issue.

It is necessary to emphasize in passing that this photograph had been shown incessantly for 48 hours on French and foreign television and that the existence of a prior and actual broadcasting in a “public forum” is nearly systematically held to be one more reason on the basis of which the European court finds a publication lawful.

What did the Court decide?

The Court did not find that personal dignity had been impaired, and this should suffice to recognize the lawfulness of the photograph.

However, the Court substitutes the totally subjective notion of "intense pain" of the family "and finds that the same conflicts with the notion of freedom of expression” !!

By so doing, the Court disregards the freedom to inform, as emphasized by one of the minority judges (Ms. Vajic): “if I were one day asked to cite a case decided by this Court and on which I had to adjudicate, from among all of the cases related to freedom of information and in which there is an obvious and undeniable public interest, I would choose this case.”

This case was clearly beyond the limit of free expression in an area of right to information where the picture of the murdered Prefect, along with the following caption “a tragic page of French history” was an "unambiguous condemnation of the murder and an expression of sympathy and solidarity for the family” notes minority Judge Loucaides.


It is necessary to note that the terms of the decision show a difference of treatment between pictures and "other technical processes" to the detriment of pictures:

"freedom of expression...whose scope depends in particular on the technical process used. The potential impact of such process must be taken into consideration during the review… as regards the publication of photographs, the protection of others’ reputation and rights is particularly important, especially because this may involve the circulation among a broad public of pictures containing highly personal or even intimate information concerning an individual or his family.”


True, the Court takes care to emphasize that the family had opposed the said publication and that the press release that Paris Match had been ordered to circulate was highly moderate, as the same stated that the picture "had been made without the consent of the Erignac family, which considers that such publication harms the intimacy of its privacy.”

It remains that the said decision is now binding on our national courts and on the other Member States of the European Union, unless the same is quashed by the Grand Chamber before which Paris Match will exercise an appeal. We know that such appeal may not be filed and is not admissible unless the matter is serious.

It will thus be necessary to join forces, in order to prove to the judges who have failed to see the impact of their decision, that on the basis of the said decision, pictures of victims of various violent events, such as terrorist attacks, disasters, etc. could no longer be circulated in Europe, although it is obvious that:

1. there is a need, a right and a duty to inform
2. such pictures are circulated worldwide anyway on television channels and on the Internet

  AFFAIRE HACHETTE FILIPACCHI ASSOCIES c. FRANCE.pdf 

Other Links :
FNAPPI website
The Perpignan Call
Case Law of the European Court of Human Rights
The European Convention of Human Rights