France - presidential election16 April 2002
Appeal to the the candidates
In recent years, French courts have handed down a number of rulings particularly harmful to press freedom. They now frequently give priority to confidentiality of the preliminary examination of a case, to the principle of presumed innocence and to the confidentiality of professional and financial information over a journalist’s right to freely seek out and publish material. This trend was confirmed in 2001, in contradiction to rulings of the European Court of Human Rights (ECHR), which usually favours the right to inform the public on grounds that "safeguarding press freedom is in the interests of a democratic society."
A dozen journalists were convicted or prosecuted in 2001 for publishing articles investigating matters of public interest such as scandals. Libel writs are still regularly used. In the Falcone scandal about illegal arms sales to Angola, two national daily newspapers and four journalists were convicted by the Paris magistrates’ court for articles that were deemed "generally" defamatory. The court said the facts in the article were "not individually libellous, but taken together" they were "because of the implications that can be drawn from them."
Some journalists were prosecuted for "jeopardising the presumption of innocence." A magazine that printed a photo of former Elf Aquitaine oil company chief Alfred Sirven in the Santé prison in Paris was fined the equivalent of 6,100 euros under the new article 35 (3) of the 1881 press law, added by the law of 15 June 2000 to strengthen the protection of presumption of innocence. The court said the law clearly took priority over the argument that the right to inform the public was more important in the case of a special event. The photographers cleared in 1999 of involvement in the accidental death of Britain’s Princess Diana faced new charges in 2001 of "invading privacy" for taking photos of the accident.
More seriously, as well as the traditional limits on press freedom, imposed by the law to prevent and punish violation of people’s rights, there is a new practice by courts and judges that challenges the right of journalists to even possess certain kinds of information.
The French supreme court confirmed in 2001 the existence of a new crime for journalists of being in possession of material violating the confidentiality of a preliminary legal investigation or of professional matters when it upheld the conviction of two journalists who revealed documents from an enquiry into the scandal of phone tapping ordered by the French presidency. But journalists are not legally bound by this confidentiality, as are judges, police and court clerks, or by professional secrecy, as are lawyers. The offence of "possessing" material breaching such confidentiality emerged with the political-financial scandals of the 1990s and has since been a regular feature of court cases.
Journalist Arnaud Hamelin was charged under this heading in October 2000 in connection with the copying and passing of the "Méry cassette" as part of the preliminary investigation of former finance minister Dominique Strauss-Kahn and "others" for "removing a document from legal custody." The supreme court confirmed this legal innovation even though the ECHR condemned France in 1999 in another case, saying that conviction of a journalist for possessing a document involving professional secrecy was undue interference by legal authorities in freedom of expression.
This disturbing trend in the decisions of French courts also challenges the right of journalists accused of defamation to present proof of their allegations, details of their investigations and evidence of their good intentions. A journalist was convicted in May 2001 of having presented in his defence material from a judge’s preliminary investigation two years earlier.
The Paris appeals court also confirmed in 2001 a decision against a daily paper for libelling Dr Michel Garetta in a French blood transfusion scandal. The paper’s lawyer said the court forbade the journalists to produce documents covered by legal confidentiality that proved the seriousness of the journalist’s investigations. Journalists are thus caught between being accused of libel if they fail to prove their assertions and of illegally "possessing information" if the material that may prove their case is part of an ongoing investigation.
But if the journalist seems to know more than the judge and his investigations seem more thorough than the legal investigation, there is a great temptation for courts and judges to force journalists to reveal their sources. The right of journalists not to reveal their sources is regularly challenged in France. In September 2001, journalist and photographer Jean-Pierre Rey, a Corsican affairs specialist, was held for nearly the legal maximum of four days by the National Anti-Terrorist Service (DNAT) for lengthy interrogation under the unspoken but real threat that he could be charged.
Over the previous 20 months, four other journalists were questioned in similar circumstances, to "give evidence" as part of enquiries into attacks in Brittany and Corsica or into political and financial scandals. Journalist Hubert Levet, who in 1999 had disclosed the half-yearly accounts of the firm Aérospatiale-Matra before they were officially released, was questioned at length by financial experts of the Paris magistrates’ court about the source of his information, which he refused to reveal. His paper’s offices were searched and his details of all his phone calls examined. He was finally left alone by the authorities in February 2000.
In October 2000, journalist Arnaud Hamelin was detained for two days for questioning about how he had arranged to copy the "Méry cassette" and how its contents came to be published in the daily Le Monde. The June 2000 law says people cannot be held for questioning unless there are "reasons to suspect they have committed or tried to commit an offence." The journalists who have been detained in this way over the past two years have denounced what they call a form of pressure to get them to disclose information covered by the right not to reveal sources.
A journalist investigating possible criminal activity is thus often treated by the legal system on an equal footing with the suspected criminals. This assimilation, which has become commonplace in recent years by judges handling financial or anti-terrorist cases, is deplorable. Seeking out and publishing information is the essence of journalism. In matters of public interest that are under legal investigation but of special interest to the general public, the media must be able to continue freely playing its role, which is not to be confused with the role of the courts, and to freely exercise its responsibility in relation to the truth and reliability of information and its respect for individuals, as part and parcel of democratic debate.
This issue is important enough to be tackled by the candidates in the French presidential election. The French National Press Federation and Reporters Without Borders urge that the Code of Criminal Procedure (article 109, paragraph 2) be amended to strengthen the protection of journalists being interviewed by courts and judges about material gathered in the course of their work. So far, such appeals have fallen on deaf ears.
We now ask the candidates to formally pledge that they will ensure respect, legally and in practice, of the right of journalists to freely seek out and disseminate information without always having to account for such activity to judges and courts.