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France29 May 2009

Regrettable decision by appeal court to lift ban on magazine only if offending photo is covered up

Reporters Without Borders said it was “regrettable” that a Paris appeal court ruled yesterday that the latest issue of the monthly magazine Choc can go back on sale only if a photograph of murder victim Ilan Halimi on the cover and inside pages is blacked out. Halimi’s alleged murderers are currently on trial.

The ruling was the result of Choc’s appeal against a court order issued at the request of Halimi’s family on 20 May for the withdrawal of all copies of the issue from newsstands on the grounds of “invasion of privacy.” Halimi, 23 was kidnapped and tortured to death in 2006 by a gang known as the “Barbarians.” The photograph was sent to the family by the kidnappers, who allegedly chose the victim because he was Jewish.

“We express our utmost respect for the grief of Halimi’s family and our horror at the way this young man was tortured,” Reporters Without Borders said. “We nonetheless believe that the publication of information and photos about this case, which concerns us as citizens, will help to shed light on the monstrous nature of this tragedy. We therefore think the court took the wrong decision.

“Yesterday’s ruling seems to soften the original court order but continues to accept the position taken by the prosecutor’s office, namely that a shocking photo should not be published. As a result, the offending photo has to be blacked out, not just on the cover but also on the inside pages, where it appears in four places.

“The appeal court’s ruling is all the more paradoxical because Ilan Halimi’s mother herself objected to the decision to hold the trial of his accused murderers behind closed doors and because the photo was already published by the media in 2006 without occasioning any legal action.

“The magazine has meanwhile been penalised by the withdrawal of this issue from sale since 20 May. The conditions for lifting the ban are not realistic. It is very unlikely that all the copies are going to be recalled, doctored and then put back on sale.”

Choc’s lawyer, Richard Malka, said yesterday’s ruling “ends up being the same as the withdrawal order” and that, as result, he would take the case to a higher court.

The appeal against the withdrawal order, issued by Judge Philippe Jean-Draeher, was heard on 25 May but the court did not issue its ruling until yesterday. The court said the photo of Halimi was “indecent and a violation of human dignity” and that it did not see any grounds for its publication. The court added that the magazine could be sold if the photograph was covered up, and it set a fine of 50 euros for every copy put on sale that failed to comply with this requirement.

The offending photo, reportedly the first one sent to the family by the kidnappers, showed Halimi with a pistol against his temple, his face covered by masking tape and his wrists bound. The magazine did not consult the family before deciding to publish it. The prosecutor’s office said its publication violated “the feeling of grief and personal dignity.”

Choc editor Paul Payan said it deserved to be published because it showed that “the barbarity was there from the outset.” Malka and the magazine’s other lawyer, Claire Chaillou, said in a joint statement that “if you ban all photos that could cause offence, you are going to seriously restrict the possibilities of informing the public.”

A publication ban is extremely rare in France. One of the precedents was the January 1996 ban on “The Big Secret,” a book by former President François Mitterrand’s private physician, Claude Gubler. The European Court of Human Rights ruled in 2004 that the ban violated freedom of expression.

A Paris court for minors has been trying the “Barbarians” behind closed doors since 29 April. The gang’s alleged leader, Youssouf Fofana, is said to have decided to kidnap Halimi because he was Jewish and “had to be rich.” Fofana recently rejected one of his defence lawyers on the grounds that she was Jewish.

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