Courts censor Bettencourt recordings
After finding them guilty of invading privacy, a Versailles appeal court ordered Mediapart and Le Point to purge their websites of all the recordings (and transcripts of the recordings) made by billionaire heiress Liliane Bettencourt’s butler in her home without her knowledge in 2009 and 2010. If Mediapart had not complied by midnight on 22 July, the deadline set by the court, it would have had to pay a fine of 10,000 euros a day. Nonetheless, this content, which exposed conflicts of interest and abusive requests for donations from Bettencourt, a major shareholder in the French cosmetics company L’Oreal, was of public interest. The importance of the suppressed content – more than 100 written, audio and video files – sets a dangerous precedent for freedom of information. News websites and human rights organizations including WeFightCensorship have decided to post this content online because they believe that, as the decisions of the European Court of Human Rights have established, a legitimate right to privacy should not automatically prevail over a legitimate right to information.
An “affaire d’état”
The “Bettencourt affair” began to make the headlines in 2007, when Liliane Bettencourt’s daughter set about trying to get Bettencourt declared a ward of court on the grounds those around her were exploiting her mental and physical frailty for personal gain. But what started out as a family affair quickly became an “affaire d’état.”
Recordings secretly made in her living room in 2009 and 2010 exposed dubious tax manoeuvres and links with politicians and judicial officials. What with secret funding of a political party, tax evasion, influence peddling, abuse of a person’s frailty, fraud and misuse of assets, the “Bettencourt affair” became a leading news story from the summer of 2010 onwards.
The judicial case was transferred to Bordeaux, where it resulted in more than ten formal investigations, including an investigation into former President Nicolas Sarkozy on suspicion of exploiting Bettencourt’s frailty for personal gain.
Affair within the affair – the recordings
Mediapart and Le Point published extracts from the secret recordings on 16 June 2010. The man responsible for them was the billionaire heiress’ butler, Pascal Bonnefoy, who wanted to provide evidence that advantage was being taken of his employer, then aged 86.
He handed the recordings over to Liliane Bettencourt’s daughter, Françoise, who in turn gave them to the Fraud Squad, which had been investigating suspected abuse of Bettencourt’s frailty since 2007.
Mediapart learned of their existence a few days later and, on the grounds that they contained information of public interest, decided to publish extracts that excluded “all allusions to personal privacy and intimacy.” Of more than 20 hours of recordings, Mediapart and Le Point published only one hour.
Court censorship and disproportionate sanctions
The removal of the recordings from the Mediapart and Le Point websites is the result a court’s opinion on the relative importance of privacy and the right to information of public interest. In its 4 July decision, the Versailles appeal court argued that revealing information of public interest can never justify an invasion of privacy.
“The requirement to inform the public in a democratic society, specified in article 10 of the aforementioned convention [European Convention on Human Rights], which could have been satisfied by investigative and analytic reporting carried out under the right to confidentiality of sources, cannot be justified by the dissemination of recordings or even extracts of recordings that were obtained by violating the right to privacy as affirmed by article 8 of the same convention.”
This ruling violates media freedom and does not accord with the judicial precedents established by the European Court of Human rights. The ruling in Fressoz and Roire v. France established that revealing information of public interest can justify a violation of privacy, contrary to the Versailles appeal court’s ruling.
The Versailles appeal court ordered Mediapart and Le Point to remove all the extracts of the recordings, even those that constituted evidence in other cases and allowed the public to learn of scandals involving leading politicians such as then budget minister Eric Woerth and former President Nicolas Sarkozy.
The Versailles appeal court’s decision also contradicts other European case law such as Vereniging Weekblad Bluf! v. The Netherlands (§43 and §44), on the absence of any requirement to prevent the publication of information that has already been widely disseminated, and Pinto Coelho v. Portugal (§38) on the journalist’s right to produce evidence of his claims.
The ruling in Público - Comunicação Social, S.A. and others v. Portugal made it clear that draconian financial sanctions – such as 10,000 euros a day – tend to push journalists to censor themselves. The court ruled: “Such an award [of damages of 75,000 euros each against four persons] would inevitably be likely to deter journalists from contributing to public discussion of issues affecting the life of the community and was liable to hamper the media in performing their task as a purveyor of information and public watchdog.”
For all these reasons, WeFightCensorship is publishing the content censored by the French judicial system.
Download all the recordings and transcripts.
Listen to a selection of extracts:
This passage from the Bettencourt recordings reveals the links that existed at the time between Nicolas Sarkozy’s legal adviser, the manager of Liliane Bettencourt’s fortune, Patrice de Maistre, and then Nanterre prosecutor Philippe Courroye. It concerns a judicial decision in the dispute between Bettencourt and her daughter. There are grounds for thinking that the Elysée Palace and De Maistre may have learned of this decision more than a month before it became public.
Cheques for three leading politicians are being signed. Liliane Bettencourt is giving 7,500 euros each to Eric Woerth, Nicolas Sarkozy and Valérie Pécresse (who at the time was a candidate for Paris mayor).
In this extract, De Maistre explains to his employer, Liliane Bettencourt, that he must go to Switzerland to close her bank accounts “before Christmas” because, on 1 January, the French government could obtain information from the Swiss authorities about the accounts of French taxpayers who are tax exiles. He is ready to transfer money from Bettencourt’s Swiss accounts to Singapore, another tax haven. As a result of the Mediapart and Le Point revelations, Bettencourt will have to pay the French government 100 million euros in readjusted back taxes.
The Versailles appeal court decision of 4 July 2013:
Preceding court decisions
First decision: Paris high court
Liliane Bettencourt and her financial adviser, Patrice de Maistre, responded to the publication of the recordings by suing Mediapart and Le Point for violation of privacy on 22 June 2010. A Paris high court judge ruled on 1 July 2010 that the violation of privacy had to be defined by the content of the recordings and not just by the way they were obtained. Finding that the content was of legitimate public interest, the judge referred to article 11 of the Declaration of Human Rights and the Citizen and article 10 of the European Convention on Human Rights expressing the need to reconcile freedom of expression and information with respect for privacy. He concluded that removing the recordings would constitute “an act of censorship contrary to the public interest.”
Second decision: Paris appeal court
A few days later, on 23 July, a Paris appeal court upheld the high court judge’s decision, finding that the violation of privacy was minimal because the content published by Mediapart and Le Point concerned the management of Liliane Bettencourt’s assets and Patrice de Maistre’s professional activities. Mediapart had selected the content posted in order not to violate Bettencourt’s privacy.
Third decision: Court of Cassation
The Court of Cassation quashed the appeal court’s decision on 6 October 2011 and transferred the case to the Versailles appeal court. The Court of Cassation found that recording private or confidential conversations without consent constituted a violation privacy that was not justified by the public right to information.