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[image:1,l] Law Courts in Nice, France (crédit: Shutterstock)
On Thursday, 3 July the Paris Court of Appeal confirmed that the tape recordings made by the former adviser to Nicolas Sarkozy were illegal, and requested their withdrawal from the Atlantico site. Atlantico will appeal the ruling.
Paris, France – 7 July 2014 – On 5 March 2014 Atlantico put online tape recordings made by Patrick Buisson, revealing to the general public the control by the unofficial adviser to Nicolas Sarkozy of the former president’s political circles. On Thursday, 3 July, the Paris Court of Appeal confirmed the withdrawal of the recordings, which had been ordained on March 14 by the Tribunal de Grande Instance of Paris on the grounds that they constituted an invasion of privacy. But does the seriousness of the facts not justify an exception to the rule?
Atlantico asked the question to Basile Ader, a French lawyer specializing in Freedom of the Press, in particular the French law on defamation.
Basile Ader: The seriousness of the facts does justify an exception, but that was not the opinion of the judges of first instance or on appeal. The ruling deserves to go to the Supreme Court, although the Mediapart rulings in the Bettencourt case would suggest it is pointless. But we will appeal to the European Court, which means to going through the Court of Cassation. Our message is simple: the courts refuse journalists a right they give to police investigators.
The issue is the notion of the general interest in the information, which is not considered to be protected by privacy. The court simply focused on the conditions under which the information was collected, i.e. without the knowledge of the persons being recorded during private conversations, but the content was not private. The content proves that Patrick Buisson had influence over the president’s political circles.
The Court of Appeal could either consider, as is traditionally the case, that if there is nothing in the content intrusive to private life it is lawful to illustrate the information by posting excerpts from the recordings, or it could confirm the lower court’s decision, as it did on Thursday. In so doing, however, it reversed conventional jurisprudence, focusing only on the fact that the recordings were clandestine, and therefore necessarily illegal, regardless of their content.
Between the recordings used to indict Nicolas Sarkozy, at the expense of respect for privacy, and those that Atlantico was ordered to withdraw , on the same principle of respect for privacy, the courst seem to practice « two weights, two measures », with an obvious lack of consistency.
The courts consider that the recordings are legal when they tend to prove a breach of the law, but illegal for the press, when it considers that information is of the general interest. We can see that the police and journalists are not entitled to use the same methods of investigation.
Atlantico: Does the political nature of the case have any incidence?
Basile Ader: It is not because the courts have reversed jurisprudence that they do so for political considerations, but they have only done so in two cases: the Bettencourt case, and now, the Buisson case.
In the Bettencourt affair, Mediapart has appealed to the European Court of Justice, which will have the last word. We can reasonably expected the Court to consider that if the information is of the general interest, it does not matter where it comes from as long as the journalist did not make the clandestine recordings, but simply received them, in which case the journalist has the right to keep his or her sources secret.
Atlantico: The courts consider that the recordings made of Nicolas Sarkozy and his lawyer can be used against the former president. Given the questionable manner in which the documents were obtained, what is basis for their argument?
Basile Ader: The law considers that if the judicial authority has not made the illicit recordings, since evidence is free in criminal law, only the content is at issue. When the content reveals the existence of a criminal offense, there is no reason not to accept it.
Atlantico: If Atlantico loses its appeal, one of the public prosecutors may consider taking legal action against Patrick Buisson, on the basis that the recordings were made illegally, despite the fact that Atlantico has been convicted of the same offense. Does that mean the admissibility of recordings in court, regardless of how they were obtained, depends on the judge hearing the case?
Basile Ader: Even though the illicit origin of the recordings seems to be proven, which is what justifies the ban on their use by the press, the courts do not take into account their illicit origin to refrain from using them, including in proceedings against Patrick Buisson, the author of the illicit recordings. In short, journalists do not have the same rights as police investigators.
Article translated by Malcolm Duff (www.htt.fr), a member of “Translators for Journalists”
The original article was published by Atlantico
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The sole responsibility for the content of this article lies with the translator. Translated with the kind permission of the copyright owner.