Journalists and publishing companies
II. RELEVANT DOMESTIC LAW 15. The relevant provisions of Chapter IV of the Freedom of the Press Act of 29 July 1881 (as amended) are as follows: Section 29 “ It shall be defamatory to make any statement or allegation of a fact that damages the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact.” Section 31 “ Defamation by reference to the functions or capacity of one or more ministers or ministry officials, one or more members of one of the two legislative chambers, a civil servant, a representative or officer of the law, a minister of religion in receipt of a State salary, a citizen temporarily or permanently responsible for a public service or discharging a public mandate, a member of a jury or a witness on the basis of his witness statement [in speeches, shouts or threats made or uttered in public places or meetings, or in written or printed matter, drawings, engravings, paintings, emblems, images or any other written, spoken or pictorial medium sold or distributed, offered for sale or exhibited in public places or meetings, or on placards or posters on public display, or in any audiovisual medium] shall be punishable [ by a fine of 45,000 euros]. Defamatory statements about the private lives of the above persons shall be punishable under section 32 below. ” Section 41 “The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1. Publishing directors and publishers, irrespective of their occupation or title ... ” 16. Section 93 - 3 of the Audiovisual Communication Act of 29 July 1982 states: “In the event of one of the offences provided for in Chapter IV of the Freedom of the Press Act of 29 July 1881 being committed by an audiovisual operator, the publishing director ... shall be prosecuted as the principal offender provided that the content of the offending statement has been fixed prior to being communicated to the public. ... When the ... publishing director is prosecuted, the maker of the statement shall be prosecuted as an accessory. ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 7 § 1 OF THE CONVENTION 17. The applicants complained that the criminal law had been extensively applied in that, when finding that “the content of the offending statement [had been] fixed prior to being communicated to the public” despite the fact that all the news bulletins and flashes concerned had been broadcast live, the domestic courts had based their finding of the second and third applicants'criminal responsibility on an interpretation by analogy of section 93 - 3 of the Audiovisual Communication Act (Law no. 82-652 of 29 July 1982 – “the 1982 Act” ). They relied on Article 7 § 1 of the Convention, which provides: “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.” 18. The Government submitted that in the field of audiovisual communication the presumption of the publishing director's responsibility established by section 93 - 3 of the 1982 Act applied only to cases in which the content of a defamatory statement had been fixed prior to its communication to the public, where “prior fixing” of the statement enabled the publishing director to check its content before it was broadcast. In the case of a live broadcast that presumption did not in principle apply. In accordance with the rules of ordinary law, the prosecution had to prove that the publishing director had personally participated in broadcasting the statement. By ruling that there was “prior fixing” where a statement was broadcast repeatedly, the courts had merely interpreted that concept. They had by no means adopted reasoning to the accused's detriment by analogy. In the Government's submission, the applicants'argument amounted to equating the concept of “prior fixing” with that of “recording”, only a prior “recording” being capable of enabling the publishing director to exercise his power of supervision. Yet in the present case the criminal courts had exonerated the second applicant, the publishing director of Radio France, of all responsibility for the first bulletin, broadcast live on France Info; the applicants'convictions had been based on the later bulletins only. In doing so the courts had made a reasonable interpretation of the concept of “prior fixing”, adapting the case-law to the changing situation, through reasoning which was purely teleological and devoid of any analogy. The Government further submitted that the text of section 93 - 3 of the 1982 Act made no distinction between live broadcasts and pre - recorded programmes. It followed that the domestic courts had not extended the normal scope of that provision to cover a situation not provided for in the legislation. Parliament had deliberately used the concept of “prior fixing” rather than that of “prior recording”, the former being broader than the latter. The word “ fixation ” in the French language referred to “what is determined in advance”, which could therefore be checked. In short, the courts had not created a new charge or autonomous offence by analogy. In addition, the Government submitted that the interpretation of the term “prior fixing” in the present case had been “consistent with the essence of the offence”. Firstly, the intention had been to adapt the text to “new circumstances”, as France Info, the first European radio station to broadcast news programmes round-the-clock, had not been set up until 1987, quite some time after the enactment of the 1982 Act. Secondly, it was a reasonable reflection of the way the offence had originally been framed, since it was based on the possibility of supervision by the publishing director whenever a statement was repeated, whether live-to-air or not. Lastly, the Government said that the interpretation complained of had been foreseeable. They pointed out in that connection that, as a lawyer and media professional, the second applicant could not have been unaware of the provisions of section 93 - 3 of the 1982 Act; by taking appropriate advice if necessary, he could reasonably have been expected to foresee how they would be interpreted. 19. The applicants replied that legal theorists writing in that specialist field had all equated the concept of a statement's “prior fixing”, within the meaning of section 93 - 3 of the 1982 Act, with its “prior recording”, and excluded live broadcasts from the scope of that provision. They referred in that connection to the following two publications: Communication audiovisuelle, J. Francillon and B. Delcros, Juris -Classeur pénal, Annexe Vo communication audiovisuelle, vol. 2, 1990, §§ 47 - 48, and Droit des médias, C. Debbasch (ed.), 1999, no. 2509. By applying section 93 - 3 of the 1982 Act in the context of the repetition of a statement in a live broadcast, even though in such circumstances the presenter remained the sole judge of its content and the advisability of repeating or adapting it, the domestic courts had departed from the legislature's intentions, as confirmed by the prevailing legal theory, and created “by analogy” a new category of offence. 20. The Court reiterates that Article 7 § 1 of the Convention requires offences to be “clearly defined in law”. That condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts'interpretation of it, what acts and omissions will make him liable (see, for example, Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260 - A, p. 22, § 52). It is true that, in the context of audiovisual communication, the words “fixed prior to being communicated to the public” may seem to indicate that a publishing director cannot be convicted of an offence under section 93 - 3 of the 1982 Act unless the offending statement has been recorded before being broadcast. Thus construed, section 93 - 3 cannot form the basis for the successful prosecution of a publishing director where the “statement” has been broadcast live. The Court notes moreover that the Government have not supplied any evidence that before the applicants'trial the domestic courts had applied section 93 - 3 in circumstances similar to those of the present case. Nevertheless, Article 7 of the Convention does not outlaw the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, “provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen” (see Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50, ECHR 2001 ‑ II). The Court notes that the presumption of the publishing director's responsibility established by section 93 - 3 of the 1982 Act is the corollary of the latter's duty to check the content of the “statements” put out through the medium for which he works. The reason, therefore, why the publishing director's responsibility is engaged only where the content of the offending “statement” has been “fixed” prior to being broadcast is that he is deemed on account of that “prior fixing” to have been placed in a position to apprise himself of its content and check it before it is broadcast. Moreover, it is clear – and the parties did not disagree on this point – that there has been “prior fixing” where the offending “statement” has been recorded with a view to its being broadcast, and that, conversely, there has been no prior fixing where such a statement has been broadcast live. In the Court's opinion, the facts of the present case fall halfway between recording and live broadcasting. On the one hand, the offending statement was not recorded; on the other, in view of the way France Info operated, it was intended to be repeated live-to-air at regular intervals. As there had been no “prior fixing”, the criminal courts absolved the publishing director of all responsibility in respect of the first of the bulletins broadcast on France Info; on the other hand, they held that that first broadcast had constituted a “prior fixing” of the statement's content as regards subsequent broadcasts. They therefore ruled that from the second broadcast onwards the publishing director could be considered to have been placed in a position to check its content beforehand. The Court considers that, in the particular context of the way France Info operated, that interpretation of the concept “prior fixing” was consistent with the essence of the offence concerned and “reasonably foreseeable”. There has accordingly been no violation of Article 7 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 2 OF THE CONVENTION 21. The applicants asserted that section 93 - 3 of the 1982 Act established an irrebuttable presumption of the publishing director's responsibility, which was automatically and necessarily inferred from his function, notwithstanding any evidence to the contrary he might seek to adduce, relating to his conduct or the conditions in which information was published or broadcast. The domestic courts had thus inferred the second applicant's criminal responsibility from the existence of a repeated statement and his status as publishing director. In the applicants'submission, that had infringed the right to the presumption of innocence, guaranteed by Article 6 § 2 of the Convention in the following terms: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” The applicants further complained that, as interpreted by the domestic courts, section 93 - 3 of the 1982 Act entailed a breach of equality of arms in that the publishing director's guilt was automatically inferred from the mere objective fact that a statement had been broadcast repeatedly, the prosecution not being required to prove that he intended to commit the offence, whereas the defendant was deprived of the possibility of establishing facts “capable of exonerating him”. They relied on Article 6 § 1 of the Convention, which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... ” 22. The Government submitted that section 93 - 3 of the 1982 Act did not establish an irrebuttable presumption of the publishing director's responsibility. Firstly, the prosecution was still obliged to prove the objective element of the offence, namely the broadcasting of a defamatory statement; it was merely absolved from the obligation to prove the mental element. Secondly, defendants could still deny the facts or challenge their classification. Thirdly, once the facts had been established, the presumption did not prevent defendants, whether principals or accessories, from presenting a defence. On this last point, the Government admitted that by section 35 of the 1881 Act defendants could not seek to establish proof of the truth of the defamatory statement where, as in the present case, the events concerned had taken place more than ten years before. However, they could plead good faith, which was a valid defence. The second and third applicants had indeed put forward that defence in the criminal courts, and the fact that their arguments were not accepted did not mean that proof of good faith was impossible. It was also open to defendants to plead compliance with a statutory requirement ( l'ordre de la loi ) or necessity ( force majeure ), both defences under ordinary law. The Government argued on that basis that the second applicant could have put forward legal arguments other than a claim not to be the publishing director as an effective defence. The Government further submitted that the Convention did not prohibit presumptions of fact or of law provided that they were kept within reasonable limits which took into account the gravity of what was at stake and maintained the rights of the defence. The presumption in section 93 - 3 of the 1982 Act respected such limits. Firstly, it came into play only with regard to the offences defined in Chapter IV of the 1881 Act, concerning the offences of defamation and insult. Secondly, the legal responsibility of each defendant was determined in strict proportion to the part he or she had actually played, with a legal distinction being drawn according to whether or not the content of the information had been fixed prior to its communication to the public. Where that was not the case, the publishing director, not having been in a position to intervene to prevent the broadcast, could not be prosecuted as a principal. Lastly, the Government submitted that the way in which section 93 - 3 of the 1982 Act had been applied in the present case had been compatible with the presumption of innocence. Firstly, the domestic courts had fully established the defamatory nature of the statements broadcast. Secondly, they had clearly proved the existence of intent on the part of the third applicant, after meticulously examining the documents and witness evidence he had adduced to prove his good faith. Thirdly, the second applicant's conviction as principal did not infringe the “principle of individual responsibility”, since the criminal responsibility contemplated in section 93 - 3 arose not from producing the statement but from publishing or broadcasting it, which formed part of the responsibilities of the publishing director; above all, in the present case, by emphasising that “a rolling news bulletin may be monitored and controlled ... by making the necessary arrangements to that effect ”, the Paris Court of Appeal had in a sense established intent on the part of the second applicant even though in law it did not actually need to do so in order to find him guilty. 23. The applicants contested the Government's argument that a publishing director could escape liability by proving his good faith; the established case-law – which moreover drew the consequences of the strict liability provided for in section 93 - 3 of the 1982 Act – proved the opposite (they referred in that connection to the following judgments of the Court of Cassation, Criminal Division : Cass. crim., 22 December 1976, Bulletin no. 379, p. 961, and Cass. crim., 8 July 1986, Bulletin no. 233, p. 596). The presumption of responsibility established by that section was indeed therefore irrebuttable. According to the Court's case-law, Article 6 § 2 of the Convention required States to keep presumptions of fact and of law within reasonable limits which took into account the gravity of what was at stake and maintained the rights of the defence; but there was no criminal policy consideration of any particular gravity which militated in favour of the presumption in issue in the present case. Moreover, although the applicants did not deny that necessity was a defence under ordinary law capable of qualifying the irrebuttable character of a presumption of responsibility, they could not see what might constitute a case of force majeure excluding the publishing director's responsibility under section 93 - 3 of the 1982 Act. 24. The Court points out at the outset that the complaint under Article 6 § 1 overlaps with the complaint under Article 6 § 2, so that it is not necessary to examine the facts complained of from the standpoint of the first paragraph of Article 6 taken alone (see Salabiaku v. France, judgment of 7 October 1988, Series A no. 141 ‑ A, p. 18, § 31). The Court next observes that the Convention does not prohibit presumptions of fact or of law in criminal cases. Nevertheless, it requires States “to remain within certain limits in this respect”: they must “confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence” (see Salabiaku, cited above, pp. 15-16, § 28). The result of section 93 - 3 of the 1982 Act and section 29 of the 1881 Act is that in the field of audiovisual communication a publishing director is criminally responsible – as principal – for any defamatory statement made on air, where the content of that statement has been “fixed prior to being communicated to the public”. In such a case, as soon as the statement's defamatory character has been established, the offence is made out as regards the publishing director – the maker of the statement being prosecuted as an accessory – without it being necessary to prove mens rea on his part. As pointed out above, section 93 - 3 is intended to punish a publishing director who has failed to perform his duty of overseeing the content of remarks made on air in those cases where he would have been able to exercise such oversight before they were broadcast. A number of elements have to be proved before the publishing director can be convicted: he must have the status of publishing director; the offending statement must have been broadcast and must be defamatory; and the content of the statement must have been fixed before it was broadcast. The Government have stated that where there has been no “prior fixing” responsibility is no longer presumed and the rules of ordinary law apply instead, so that the prosecution has to prove that the publishing director had a personal hand in the broadcasting of the offending statement. The Court takes the view that the difficulty in the present case stems from the fact that this presumption is combined with another, namely that defamatory remarks are presumed to have been made in bad faith. However, this second presumption is not irrebuttable; although defendants cannot seek to establish the truth of defamatory statements where, as in the present case, the events concerned have taken place more than ten years before (section 35 of the 1881 Act), they may overturn that presumption by establishing their good faith. Thus, as the Paris Court of Appeal observed in its judgment of 17 June 1998, the applicants could have established the third applicant's good faith by proving that the allegations complained of had been made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language. Therefore, as the Government submitted, a publishing director has a valid defence if he can establish the good faith of the person who made the offending remarks or prove that their content was not fixed before being broadcast; moreover, the applicants raised such arguments in the domestic courts. That being the case, and having regard to the importance of what was at stake – effectively preventing defamatory or insulting allegations and imputations being disseminated through the media by requiring publishing directors to exercise prior supervision – the Court considers that the presumption of responsibility established by section 93 - 3 of the 1982 Act remains within the requisite “reasonable limits”. Noting in addition that the domestic courts examined with the greatest attention the applicants'arguments relating to the third applicant's good faith and their defence that the content of the offending statement had not been fixed in advance, the Court concludes that in the present case they did not apply section 93 - 3 of the 1982 Act in a way which infringed the presumption of innocence. There has accordingly been no violation of Article 6 § 2 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A. The parties'submissions 25. The applicants complained of an infringement of their right to the freedom to “impart information” as a result of the penalties and measures imposed on them by the domestic courts. They relied on Article 10 of the Convention, which provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 26. The Government accepted that there had been “interference by public authority” with the applicants'exercise of their freedom of expression. They contended, however, that that interference satisfied the requirements of the second paragraph of Article 10. In the first place, they submitted that it was “prescribed by law”. The criminal convictions of the second and third applicants had been founded on sections 29 and 31 of the 1881 Act and section 93 - 3 of the 1982 Act. The order requiring the applicant company to broadcast an announcement by way of reparation for the damage caused to the civil party had been founded on Article 1382 of the Civil Code, relating to criminal liability, and on established case-law to the effect that the trial courts alone are empowered to decide what form reparation should take, being free to choose reparation in kind or pecuniary reparation (the Government referred to the following judgments: Cass., First Civil Division, 14 May 1962, Bulletin no. 241; Cass., Second Civil Division, 17 February 1972, Bulletin civ. II no. 50; Cass. crim., 9 April 1976, Bulletin no. 108; Cass., Third Civil Division, 9 December 1981, Bulletin civ. II no. 209; Cass., Second Civil Division, 11 October 1989, Bulletin no. 177; Cass. soc., 25 January 1989, Bulletin civ. no. 64; Cass. com., 5 December 1989). The Government submitted that this type of measure had already been used by the courts as a means of reparation in the context of audiovisual communication, citing – though without providing either a copy or a reference – a judgment given by the Paris tribunal de grande instance on 10 June 1983 requiring a television channel to broadcast an announcement. The Government went on to say that the interference complained of had been intended to punish and provide a remedy for conduct which had damaged the reputation and honour of a person vested with public authority. They argued on that basis that it pursued two of the legitimate aims listed in the second paragraph of Article 10, namely protection of the reputation or rights of others and prevention of disorder. Lastly, the Government submitted that, in respect of the three applicants, the interference in issue had been “necessary in a democratic society”, being based on grounds which were “sufficient and relevant ” as regards the aims pursued and proportionate to those aims. On the first point, the Government said that the domestic courts had conducted a detailed examination of the case and the parties'arguments before finding that the information broadcast on France Info had damaged Mr Junot's honour and good name. In particular, the order requiring Radio France to broadcast an announcement by way of civil reparation had appropriately reflected the circumstances of the case. On the second point, the Government argued that the conviction of the second and third applicants had been proportionate on account of the particular gravity of the damage to Mr Junot's honour and good name – the bulletin complained of had been broadcast a large number of times on a station with a very large audience, it had incautiously referred without comment to unverified facts and it had suggested a parallel with the Papon case (which betrayed a lack of impartiality) – and of the moderate nature of the fines and the awards of damages. Nor was the order against Radio France disproportionate: the domestic courts had limited its obligation to the requirement that it broadcast the announcement every two hours for twenty-four hours (a total of twelve times, as compared with around sixty repetitions of the offending statement), and the content of the announcement had responded point by point to the defamatory imputations broadcast on France Info. The applicants'argument that this measure had unduly reduced the editorial space of France Info was invalid, since news was broadcast round the clock on that channel. Moreover, since the operation of France Info depended on public funds, it could not be affected by the broadcasting of a dozen announcements over a period of twenty-four hours. 27. The applicants did not accept that the order requiring Radio France to broadcast announcements about the conviction of the second and third applicants had been “prescribed by law”. They pointed out that it followed from the fact that the trial courts alone had power to decide what form reparation should take that the Court of Cassation did not have jurisdiction to review such decisions, so that the terms of an order like the one in issue were completely unforeseeable. They further submitted that the effect of this had been to allocate air-time which should have been used to inform the public for the sole benefit of Mr Junot. They observed in particular that in Thoma v. Luxembourg ( no. 38432/97, § 64, ECHR 2001 - III; also cited by the Government) the Court had held that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation was not reconcilable with the press's role of providing information on current events, opinions and ideas. They submitted that the bulletins broadcast on France Info pointed out that the information they contained came from the weekly magazine Le Point, and that from 11.04 a.m. on 1 February 1997 onwards they mentioned the fact that Mr Junot denied the accusations against him. The question of the role of the French State in the deportation operations during the Occupation was a question of general interest to society which lay “at the heart of contemporary debate”. The bulletins complained of had not been intended to damage Mr Junot's reputation but to shed further light on a period of history of interest to the public. The applicants also emphasised the fact that the article published in Le Point to which the bulletins referred had been based on serious documentary material made up of official correspondence written by Mr Junot “which revealed his participation in operations to maintain order around the camps at the time when the deportation transports were being put together”. In those circumstances, they submitted, “the channel had no obligation to'distance itself'from the article in Le Point ”. B. The Court's assessment 28. The Court notes that the French courts convicted the second applicant (the applicant company's publishing director) and the third applicant (a journalist working for France Info), as principal and accessory respectively, of defaming a civil servant in news bulletins broadcast on France Info, fined them FRF 20,000 each and ordered them to pay FRF 50,000, jointly, in damages. The applicant company was ordered, by way of civil reparation, to broadcast a number of times on France Info an announcement about the judgment. It is therefore quite obvious that the applicants suffered “interference by public authority” with the exercise of the right guaranteed by Article 10; that point, moreover, is not in dispute between the parties. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims listed in that paragraph and whether it was “necessary in a democratic society” in order to achieve that aim or aims. 1. “Prescribed by law” 29. The parties agreed that the interference was “prescribed by law” as regards the criminal penalties imposed on the second and third applicants and the order that they pay damages. 30. On the other hand, the applicants submitted that the opposite was true of the order requiring the applicant company, by way of civil reparation, to broadcast on France Info an announcement about the conviction of the second and third applicants. As stated above, they argued that it followed from the fact that the trial courts alone had power to decide what form reparation should take that the Court of Cassation did not have jurisdiction to review such decisions, so that the terms of an order like the one in issue were completely unforeseeable. The Court does not agree. It considers that, as its case-law requires (see, for example, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316 - B, pp. 71 et seq., § § 37 et seq.), that measure had a basis in domestic law and was foreseeable. Firstly, the applicant company's civil liability for defamatory remarks broadcast on the radio channels it runs is founded on Article 1382 of the Civil Code, which provides: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it”. Secondly, it is established French case-law that the trial courts alone have power to determine the manner in which damage is to be made good and that they may order reparation in kind. On this last point, although the Government have not established that the courts regularly order measures of this type in cases involving audiovisual communication – they merely mentioned a first-instance judgment but did not provide a copy or a reference – the publication of announcements about judicial decisions is nevertheless, in France, one of the usual forms of reparation for damage caused through the medium of the press ( see, mutatis mutandis, Prisma Presse v. France (dec.), no. 71612/01, 1 July 2003). In addition, the Court has previously held that “national laws concerning the calculation of damages for injury to reputation must make allowance for an open-ended variety of factual situations” and that accordingly the words “prescribed by law” do not require that a party to judicial proceedings should be able to “anticipate with any degree of certainty the quantum of damages that could be awarded in his particular case” (see Tolstoy Miloslavsky, cited above, p. 73, § 41). It considers that a similar approach may be followed, mutatis mutandis, where reparation in kind is concerned. In short, the order requiring the applicant company, by way of civil reparation, to broadcast on France Info an announcement about the conviction of the second and third applicants was “prescribed by law”. 2. Legitimate aim 31. The Court considers that the interference undoubtedly pursued one of the aims listed in Article 10 § 2, namely “protection of the reputation or rights of others” (see, among other authorities, Tolstoy Miloslavsky, cited above, p. 74, § 45); in any event, the parties did not disagree on that point. The Court would observe that the right to protection of one's reputation is of course one of the rights guaranteed by Article 8 of the Convention, as one element of the right to respect for private life. 3. “Necessary in a democratic society” 32. The Court wishes to reiterate in the first place the fundamental principles established by its case-law (see, among many other authorities, Hertel v. Switzerland, judgment of 25 August 1998, Reports of Judgments and Decisions 199 8-VI, pp. 2329-30, § 46). Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. The Court's task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts. 33. The Court has also emphasised on numerous occasions the essential role played by the press in a democratic society. It has pointed out that, although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, and that not only does the press have the task of imparting such information and ideas, the public also has a right to receive them (see among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999 - III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002 - V ). The national authorities'margin of appreciation is thus circumscribed by the interest of democratic society in enabling the press to play its vital role of “public watchdog” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59). Although formulated in the first instance for the written press, these principles are applicable to the audiovisual media (see in particular Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31). 34. In the present case, the applicants were convicted by the French courts on account of the broadcasting on France Info on 31 January and 1 February 1997 of a number of news bulletins reporting information published in the weekly magazine Le Point to the effect that Mr Junot, when Deputy Prefect at Pithiviers from September 1942 to August 1943, had supervised the deportation of a thousand French and foreign Jews. There is no doubt that the attitude of senior French administrative officers during the Occupation is a question commanding the highest public interest and that the broadcasting of information about it forms an integral part of the task allotted to the media in a democratic society. Moreover, the information published in Le Point and the news bulletins complained of was a contribution to a public debate which was already going on at the material time and was focused on the trial of Maurice Papon, the chief executive officer at the prefecture of Gironde from May 1942 to August 1944, for aiding and abetting arbitrary arrests, false imprisonment, murders and attempted murders all constituting crimes against humanity. Since the freedom of the press was thus in issue, the French authorities had only a limited margin of appreciation in determining whether there was a “pressing social need” to take the measures in question against the applicants. Consequently, the Court will examine in scrupulous detail the proportionality of these measures in relation to the legitimate aim pursued. 35. The Court observes that the original version of the offending statement was worded as follows: “ According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.” This item was broadcast for the first time at 5 p.m. on 31 January 1997 and repeated by the third applicant and other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, either in the same form or with slightly different wording, but in each case it was pointed out that the information concerned had been published in Le Point. From 11 p.m. onwards a number of bulletins and newsflashes included the information that, “unlike Maurice Papon”, Mr Junot had not ordered anyone to be arrested, interned or transferred to Drancy, sometimes adding that he had only been responsible for “maintaining order”. Beginning at 5.45 a.m. on 1 February, a number of newsflashes and bulletins (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the accusations in Le Point. According to the applicants, that detail was systematically included after 11.04 a.m. 36. In its judgment of 17 June 1998, the Paris Court of Appeal held that in imputing to Mr Junot supervision of the deportation of a thousand Jews and the organisation of their dispatching to Drancy, in comparing his situation to that of Maurice Papon – who had just been committed for trial in the Assize Court – and in insinuating that he had not been a member of the Resistance, the above bulletin had damaged his honour and dignity and was consequently defamatory. The Court of Appeal went on to say: “Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language ”, and found that, although the first two of those conditions had been satisfied, the same was not true of the other two. As regards the third condition, the Court of Appeal found that the third applicant had broadcast the bulletin complained of when Le Point had only just come out, had used as his only sources three press agency dispatches reporting the article in that publication – a fact which did not show that he had checked the information – and a television programme in which Mr Junot had taken part, and had gratuitously asserted that Mr Junot admitted that his conduct had been blameworthy. As regards the fourth condition, the Court of Appeal held that the imputations contained in the information broadcast had been disproportionate in relation to the objective material which the applicants claimed to have had at their disposal. It considered that the use of the conditional tense and “the mention – very late in the day – of Mr Junot's denials ” did not attenuate “ the gravity of the allegations made in dispatches broadcast several dozen times ”, and that the content of the documents quoted in Le Point did not justify the construction that had been placed upon them in the news bulletins. On that point, it said: “All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews. ” 37. The Court reiterates that by reason of the “duties and responsibilities” inherent in the exercise of the freedom of expression, the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Bladet Tromsø and Stensaas, cited above, § 65, and Colombani and Others, cited above, § 65). Nevertheless, journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, in particular, Bladet Tromsø and Stensaas, cited above, § 59). Moreover, a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press's role of providing information on current events, opinions and ideas (see Thoma, cited above, § 64). The bulletins complained of reported on a detailed article, backed up by documentary research, and an interview, to be published in a weekly magazine whose standing as a serious publication is not open to doubt, and they systematically included an acknowledgment of that source. It cannot therefore be validly maintained that merely by broadcasting those bulletins the third applicant failed to discharge his obligation to act in good faith. In that respect the Court finds the Paris Court of Appeal's reasoning unpersuasive. 38. It notes, however, that the France Info bulletins contained an assertion that had not appeared in Le Point, namely that Mr Junot “ admits that he organised the departure of a transport of deportees to Drancy ”. While it is true that the article stated that a transport of a thousand interned Jews had left Pithiviers on 20 September 1942 “under Junot's responsibility”, there was nothing in it – any more than there was in the interview with Mr Junot – to indicate that he had admitted organising the departure of that transport. The Court does not believe that this can be taken as an example of the “degree of exaggeration” or “provocation” which is permissible in the exercise of journalistic freedom. It considers that it amounted to the dissemination of incorrect information about the content of the article and the interview published in Le Point. Although in other respects the bulletins, as was right and proper, went no further than repeating the information published by Le Point and systematically attributed it to that source, they summarised in that way in a few sentences a six-page feature article, highlighting its most striking parts. That gave the account of the conduct imputed to Mr Junot a categorical tone not present to the same extent in the original publication. Admittedly, more nuanced wording, and eventually the information that Mr Junot denied the allegations, were gradually introduced into the text of the bulletins. However, by that time, in any event, the previous version had already been broadcast repeatedly. 39. It is not for the Court to substitute its views for those of the press as to what technique of reporting should be adopted by journalists; Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Jersild, cited above, pp. 23-24, § 31). It considers, however, that in the present case the extreme gravity of the conduct imputed to Mr Junot and the fact that the France Info bulletin was intended to be broadcast repeatedly – as indeed it was – required the third applicant to exercise the utmost care and particular moderation. That was all the more relevant in the Court's opinion because the bulletin was put out over the radio on a channel which could be received throughout French territory. In that connection, it reiterates that in considering the “duties and responsibilities” of a journalist, the potential impact of the medium concerned is an important factor, and it is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (ibid.). Within those limits, the Court considers that the reasons given by the Court of Appeal for its ruling that Mr Junot's honour and dignity had been damaged and its judgment against the applicants were “relevant and sufficient”. 40. As regards the “proportionality” of the interference complained of, the Court notes that the second and third applicants were found guilty of an offence and ordered to pay a fine, so in that respect alone the measures imposed on them were already relatively serious ( see, mutatis mutandis, Lehideux and Isorni v. France, judgment of 23 September 1998, Reports 1998 - VII, p. 2887, § 57). However, in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued. That being so, the Court notes that the amount of the fine imposed on the second and third applicants was moderate: FRF 20,000 each, equivalent to 3,048.98 euros (EUR). The same is true of the damages they were jointly ordered to pay Mr Junot: FRF 50,000, or EUR 7,622.45. The applicant company was ordered, by way of civil reparation, to broadcast on France Info every two hours for twenty-four hours an announcement about the conviction of the second and third applicants. The Court considers that in so doing the domestic courts quite clearly intended to find the appropriate level of reparation for the damage caused to Mr Junot by the defamation that they had found him to have suffered. Be that as it may, the Court considers that the obligation to broadcast a 118-word announcement twelve times formed only a moderate restriction on France Info's editorial freedom. Having regard to the extreme gravity of the conduct imputed to Mr Junot and the fact that the bulletin in question was, in its successive versions, broadcast sixty-two times by a radio station which could be received throughout French territory, the Court considers that the measures taken against the applicants were not disproportionate to the legitimate aim pursued. 41. In the light of the preceding considerations, the interference complained of may be regarded as “necessary in a democratic society”. There has accordingly been no violation of Article 10 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the measures taken against the applicants had not been disproportionate to the legitimate aim pursued, namely the protection of the reputation or rights of others, and could therefore be considered necessary in a democratic society. As to the disputed broadcasts in particular, they admittedly quoted from a detailed and well-documented article and interview published in a reputable weekly magazine. However, they alleged that the former sous-préfect had admitted “having organised the departure of a convoy of deportees to Drancy”. According to the Court, that allegation did not accurately reflect the published article or interview. Moreover, although the broadcasts were subsequently slightly amended, and pointed out that the person concerned denied the allegations, the original bulletin was nonetheless broadcast several times.