Case of European Court of Human Rights, May 18, 2004 (case CASE OF ÉDITIONS PLON v. FRANCE)

Appeal Nbr:58148/00
Resolution Date:May 18, 2004
 
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SECOND SECTION

CASE OF éDITIONS PLON v. FRANCE

(Application no. 58148/00)

JUDGMENT

STRASBOURG

18 May 2004

FINAL

18/08/2004

In the case of Editions Plon v. France,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mr L. Loucaides, President,

Mr J.-P. Costa,

Mr C. Bîrsan,

Mr K. Jungwiert,

Mr V. Butkevych,

Mr M. Ugrekhelidze,

Mrs A. Mularoni, judges,

and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 27 May 2003 and 27 April 2004,

Delivers the following judgment, which was adopted on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no. 58148/00) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by Editions Plon, a company incorporated under French law with its registered office in Paris ("the applicant company"), on 9 June 2000.

2. The applicant company was represented before the Court by Mr J.-C. Zylberstein and Ms A. Boissard, of the Paris Bar. The French Government ("the Government") were represented by their Agent, Mr R. Abraham, Director of Legal Affairs at the Ministry of Foreign Affairs.

3. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

4. By a decision of 27 May 2003, the Chamber declared the application admissible.

5. The applicant company and the Government each filed observations on the merits.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the case

6. On 8 November 1995 the applicant company acquired the publishing rights for a book entitled Le Grand Secret ("The Big Secret") from a Mr Gonod, a journalist, and a Dr Gubler, who had been private physician to President Mitterrand for several years. The book gave an account of the relations between Dr Gubler and the President, describing how the former had organised a medical team to take care of the latter, who had been diagnosed with cancer in 1981, a few months after he had first been elected President of France. It recounted in particular the difficulties Dr Gubler had encountered in concealing the illness, given that President Mitterrand had undertaken to issue a health bulletin every six months.

The book was due to be published in mid-January 1996, while President Mitterrand was still alive. However, following the President's death on 8 January 1996, the authors and Editions Plon decided to postpone its publication.

7. On 10 January 1996 the daily newspaper Le Monde published an article which revealed that President Mitterrand had been suffering from prostate cancer since the beginning of his first seven-year term of office and pointed out that the public had not been officially informed about his illness until 1992. The article also stated that President Mitterrand had dismissed Dr Gubler in 1994, choosing instead to be treated with medicine described by the applicant company as "alternative".

Those revelations were the subject of extensive comment in the media. Questions were asked, in particular, about the quality of the treatment received by President Mitterrand.

A former cultural adviser to President Mitterrand had already claimed in a book entitled L'Année des adieux, published by Flammarion in June 1995, that the President had not received proper treatment. In addition, shortly after the President's death, one of his brothers made similar allegations. The head of the cancer treatment department at the Pitié-Salpêtrière Hospital did likewise, in particular asserting on the radio station Europe 1 that "for years [President Mitterrand had been] given nothing but magical cures, and these techniques were completely ineffective in treating his illness".

On 12 January 1996, however, Le Monde published a statement by the President of the National Council of the ordre des médecins (Medical Association) to the effect that "according to the information in [his] possession, the President [had] received perfectly appropriate treatment". Furthermore, on 11 January 1996 the President's widow and children had issued a statement emphasising that they maintained their trust in the medical team that had looked after him.

8. As Dr Gubler considered that his reputation had been called into question, it was decided to publish Le Grand Secret on 17 January 1996. The following text appeared on the back cover:

"On 10 May 1981 François Mitterrand was elected President of France.

On 16 November 1981, six months later, medical examinations revealed that the head of State was suffering from cancer. Statistically, he had between three months and three years to live.

A handful of doctors resolved to fight the illness, driven by the obsession to save the President and to obey his instruction that the French public should know nothing about the matter. It became a State secret.

Only Claude Gubler, private physician to François Mitterrand during his two terms of office, could have provided us with the astonishing account of how the President cheated death for years, taking each day at a time.

These revelations will transform our image of a man who led France for fourteen years."

B. The injunction proceedings

9. On an urgent application lodged on 17 January 1996 by President Mitterrand's widow and children, who complained of a breach of medical confidentiality, an invasion of President Mitterrand's privacy and injury to his relatives' feelings, the President of the Paris tribunal de grande instance issued an injunction on 18 January 1996 prohibiting the applicant company and Dr Gubler from continuing to distribute Le Grand Secret, on penalty of 1,000 French francs (FRF) per book distributed, and instructed a bailiff "to procure all documents containing details of the print run and the number of copies in circulation".

The urgent-applications judge based her decision on the following grounds:

"All people, regardless of their rank, birth or function, have the right to respect for their private life.

This protection extends to their relatives where the relatives are justified in asserting their right to respect for their own private [and] family life.

What is in issue in the instant case are disclosures by President François Mitterrand's private physician, who treated and attended to him for more than thirteen years and in whom the patient and his family placed their trust.

...

They were made in breach of provisions that lay down a duty of professional confidentiality, all the more strictly where medical confidentiality is concerned, and the person who made them may be liable to the penalties provided for in Article 226-13 of the Criminal Code.

By their very nature, they constitute a particularly serious intrusion into the intimate sphere of President François Mitterrand's private family life and that of his wife and children.

The resulting interference is especially intolerable in that it has occurred within a few days of President Mitterrand's death and burial.

Since this is a case of blatant abuse of freedom of expression resulting in a manifestly unlawful infringement of the claimants' rights, it is within the power of the urgent-applications judge to order measures capable of putting an end to the infringement or limiting its scope."

10. In a judgment of 13 March 1996, the Paris Court of Appeal upheld the injunction and gave the claimants one month to apply to a court with jurisdiction to examine the merits of the case, indicating that if such an application was made, the injunction and penalty for non-compliance would remain in force until a ruling was given on the merits, but that if no such application was made, those measures would cease to have effect on the expiry of the one-month period.

The judgment began by noting the definition of medical confidentiality in Article 4 of the Code of Conduct for Medical Practitioners, and emphasised that "the death of the patient does not release a medical practitioner from the duty of confidentiality". It went on to quote the text on the back cover and identified some twenty disclosures made in the book, together with page references, about facts "of which Mr Gubler had become aware in the performance of his professional duties as physician to François Mitterrand" and which "as such ... [were] manifestly covered by the rules of medical confidentiality". The judgment stated:

"...

... the disclosure, through publication of the book Le Grand Secret, of facts covered by the duty of medical confidentiality by which the co-author of the book is bound is manifestly unlawful.

The innermost feelings of Mrs Mitterrand and of François Mitterrand's children have been offended by this public disclosure of information pertaining both to the character and private life of their husband and father and to their own sphere of intimacy by the private physician to the late French President, in whom the latter had placed his trust, under the protection of a lawfully established duty of professional confidence of which all medical practitioners are solemnly reminded when the Hippocratic oath is read out on their admission to the profession.

...

... prohibition of the distribution of a book can only be an exceptional measure.

However, in view of the space they occupy, the above passages from Le Grand Secret, which disclose facts covered by the duty of medical confidentiality by which the co-author of the book is bound, cannot be separated from the rest of the book without depriving it of its fundamental content and thereby disfiguring it.

Accordingly, the decision by the first-instance judge to prohibit the [applicant] company and Mr Gubler from continuing to distribute the book Le Grand Secret was based on a precise assessment of the interim measure likely to put an end to the manifestly unlawful infringement resulting from such disclosures.

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