It is not individual journalists who are standing trial this week before a court in Bordeaux, but rather journalism itself – its democratic principle, its civic essence, its social justification. Three Mediapart journalists, including myself, and two of our colleagues from weekly French magazine Le Point, are to appear before the court between November 3rd and November 5th to answer charges of illegally handling information gained from “the invasion of personal privacy”.
The charges concern the publication by Mediapart and Le Point of selected extracts of conversations between French billionaire and L’Oréal heiress Liliane Bettencourt and her advisors and close entourage, which were secretly recorded by her butler.
Issues of personal privacy were never in question in Mediapart’s reports published during the summer of 2010 and which revealed what has become known in France as ‘the Bettencourt Affair” (see more here). On the contrary, what was at stake were issues of fraud, tax evasion, illegal political funding, the conflicts of interest of a government minister and interference from the French presidential office in judicial procedures.
It is therefore a certain idea of the place of journalism and reporting in a democratic society that will be debated this week before court in Bordeaux, beyond the individual cases of the journalists standing trial. What is at stake here is vital, not for the journalists in question, but for French citizens and their right to know as defined by the fundamental principles set out in the Universal Declaration of Human Rights, the European Convention on Human Rights and the French Constitution.
The events behind the case heard in Bordeaux this week centre on secret sound recordings made between May 2009 and May 2010 by Liliane Bettencourt’s butler, Pascal Bonnefoy. He hid a digital recorder in the former office of Bettencourt’s late husband André (who died in November 2007), situated on the first floor of her townhouse in the upmarket Paris suburb of Neuilly-sur-Seine. The first floor office was the scene of all meetings held between Liliane Bettencourt and her advisors to discuss financial affairs.
Just why did Bonnefoy, who is also standing trial in Bordeaux this week and who has never before been accused of betraying the trust of his wealthy employers, who previously included the Aga Khan, suddenly decide to capture Bettencourt and her entourage on tape?
Bonnefoy began the recordings to obtain proof of the racket targeting Bettencourt, now aged 93, whose physical and mental capacities were then already diminished and who he wanted to protect. Since 2007, an investigation was underway, led by the French police financial crime squad (la brigade financière), following a complaint lodged by Liliane’s daughter Françoise that her mother was the victim of manipulation by members of her entourage.
Bonnefoy was witness to the increasing nervousness of Patrice de Maistre, Bettencourt’s wealth and investment manager, and who, as such, was the man who occupied the most important position among the billionaire’s staff. Maistre had for some while been attempting to identify which members of the household had been offering information to the police.
Bonnefoy knew that he would inevitably be questioned as part of the police investigation, and decided that rather than provide them with only a statement about what he knew, he would provide them with the proof of the plundering of the ageing heiress’s wealth. The secret recording of the conversations were carried out in the greater good of allowing the police to uncover a crime.
Enlargement : Illustration 1
It was this information that Mediapart decided to use to develop its investigations into what became dubbed as the “Bettencourt Affair”. That is also precisely what the prosecution charge against us is, even though these same secret recordings were used as evidence in court earlier this year to convict eight people, several of whom received jail terms (see more here and here). The logic is baffling.
There is nothing to justify that a profession, and in particular that of journalism, should be allowed to escape its responsibilities. But the condition for this is that the case is heard within the only existing legal framework set out in French legislation, and which is that of the specific law relating to the activities of the press and which has been included into the French penal code since 1881. This protects the right to access information – the right to know. Yet with the Bettencourt affair, Mediapart has been made answerable to a criminal charge that is not allowed for under the laws governing the press.
The laws governing the press do expose journalists to the charge of ‘defamation’, which is the legal action most commonly used against them. Under French law, this is defined as being “the allegation or imputation of an event [or act] that harms the honour or the consideration of a person to whom the event is attributed”. A journalist can challenge this charge by providing the proof of what they have reported, or by providing the proof that they acted “in good faith”. The latter, which leaves magistrates with a margin of interpretation, must meet with any of four legal criteria. These are: “the legitimacy of the aim engaged upon” (which implies there is a public interest in the information published), “the absence of personal animosity” (i.e. the journalist is not targeting a figure they detest for personal reasons), “the prudence and measure used in the expression” (e.g. a politician suspected of corruption is not described as “a dirty, corrupt thug”) and, finally, that “the quality of the investigation” is demonstrated (e.g. the journalist did not base his report on a quick Google search while deliberately ignoring evidence that contradicts their allegations).
That is the subtle legal framework which has allowed journalism in France to be both free and responsible for its actions for almost 150 years. There however appears an increasing tendency of late to try and bypass the law and lock down press freedom, although no statistical study of this exists. The recent history of the French press is pegged with examples similar to what we have experienced at Mediapart, such as “receiving” the proceeds of “the violation of national defence secrecy”, “receiving stolen property” or “receiving” the contents of confidential judicial investigation case files. On each occasion the journalists are the target of manoeuvring to gag journalism and to avoid a true democratic debate over the journalist’s potential revelations.
The issue might for some appear anecdotal, a technical quibble that has little interest for anyone beyond a small circle of jurists, but the truth is quite the opposite. The very deliberate moves by those who use these tools to bypass the laws governing the press is fuelled by the desire to criminalise journalism in face of what they see as legislation that (despite its faults) is too protective of the freedom to inform. The manoeuvring is insidious, in line with our times. It can serve to dissuade editorial teams from investigating sensitive issues, to remove the defences of journalism and allows the police and the justice system to use more intrusive means of enquiry which place in danger the confidentiality of a journalist’s sources.
It must be repeated that in all its coverage and investigations of the Bettencourt affair, Mediapart has never been the object of any lawsuit for defamation. On the other hand, an unprecedented legal offensive was launched in 2010 by lawyers acting for Liliane Bettencourt and Patrice de Maistre in an attempt to halt the revelations by Mediapart and other press organisations of the secret goings on in the house of the wealthiest woman in Europe. For the lawyers of Liliane Bettencourt, their moves had nothing to do with the truth of the events reported by the press – which were damning – but rather to gag the revelations in all disregard of the laws governing the press.
No-one, including Bonnefoy, has contested the fact that the secret recordings made by the butler were the result of a covert and potentially illegal act, however much this was carried out in the worthy cause of demonstrating how Liliane Bettencourt was being fleeced by conmen. Mediapart had no part in making the recordings, and when it gained access to their contents Mediapart carried out a thorough study of them in order to reveal only that information which was of proper public interest.
'The vital public-watchdog role of the press'
A free and independent press which refuses to be the consenting victim of official communications and spin is by definition provided information by sources who reveal secrets that are otherwise destined to remain in the dark. Which is why journalism should be guided by two imperative notions: the truth of events, and their public interest. If one begins to consider that journalists are responsible before the law for the publication of secrets that others have violated – that he or she whose job it is to inform the public of what it does not know is deemed to be the unlawful receiver of another party’s alleged crime – then journalism is condemned to be nothing other than the relay of officially-released information.
In the Bettencourt affair, there was an attempt to stifle the scandal by using the fantasy that the personal privacy of Liliane Bettencourt and her wealth and investment manager Patrice de Maistre had been violated. Before this week’s criminal law trial in Bordeaux, several other courts had already had the task of examining our case in the framework of civil law (which governs legal action involving private individuals).
Those who attacked us over the revelations of the secretly-taped conversations under civil law began by losing their case, both in an initial judgment and later on appeal. “The totality of the words [editor’s note: of the transcripts published by Mediapart] are of legitimate public information in that they involve the principle shareholder of one of the very large French companies, given that fiscal problems and evasion of capital constitute, what is more, a subject of collective interest,” read the July 1st 2010 ruling of the Paris court examining the civil case brought against Mediapart by Patrice de Maistre and Liliane Bettencourt. “In the same manner, the calling into question of the employer of the wife of a minister, as well as the evoking of the sources of funding for a political party, is information which, being part of democratic debate, can legitimately be brought to public knowledge.” The judgement also concluded that to order that the documents published by Mediapart be withdrawn, as demanded in court by the lawyers acting for Maistre and Bettencourt, “would be to exercise a censorship contrary to public interest”. That judgment was upheld by the Paris appeal court on July 30th 2010.
Enlargement : Illustration 2
However, when the case was subsequently brought before the highest French appeal court, the Cour de Cassation, it overruled the judgment and assigned the Versailles appeal court for a re-examination of the case. The latter pronounced its own judgment in June 2013, and which was a severe blow to freedom of the press. It found that “it matters little” that Mediapart had sifted the transcriptions of the tapes to remove from publication what were only private matters, and ordered Mediapart to take down from its website all sound extracts of the tapes as well as all “total or partial” extracts of the transcriptions. The Versailles magistrates also ordered Mediapart to pay a fine of 10,000 euros per day in the event that the documents and articles in question had not been removed by the (rapid) deadline set (see more here). Mediapart would not have financially survived just two weeks of such fines.
It was an unprecedented legal move in France since the advent of the internet, and the ruling prompted a wave of solidarity for Mediapart’s cause from among both the French and international media. Before the censorship was enacted – as it was, with heavy heart – numerous internet users made available copies of the taped conversations for downloading, while several media organizations (Les Inrockuptibles, Rue89, Arrêt sur Images, Politis, Yagg, Ragemag in France, and RTBF and Le Soir in Belgium, Le Courrier in Switzerland and Spain’s InfoLibre) as well as a number of associations (including reporters Without Borders, Attac and the French League of Human Rights) offered a digital asylum to our investigations. The irony of the events was that the taped recordings were to gain a wider audience than ever before.
During the investigations into the criminal case to be heard against me and my colleagues this week in Bordeaux, I met with investigating magistrate Jean-Michel Gentil. He was one of three judges who led the various separate investigations into the Bettencourt affair, including the case of alleged breach of personal privacy that concerns us here. My meeting with him on April 5th 2012 in his underground office in the Bordeaux court house lasted more than three hours.
“If it was to be done again, would you do it?” he asked me, referring to the publication of the tapes and the transcripts. “Yes, exactly in the same way,” I told him. “All the information that we published is today at the heart of several judicial investigations led from this same courthouse and I don’t think that one can reproach the justice system for breaching personal privacy concerning these same events. The legitimacy of Mediapart’s work is validated by the very existence of all these judicial investigations.”
“Do you make a distinction between legitimacy and legality?” Gentil then asked me. I replied: “I consider that I have not committed any illegal act, unless it is considered that informing the public about questions as fundamental as the funding of public activity, the respect of tax laws, the independence of the justice system or the conflicts of interest of a member of government can be classed as a criminal act.”
The discussion was a rich one, but the outcome was disappointing. I was formally placed under investigation, a French legal status one step short of being charged, along with Mediapart editor-in-chief Edwy Plenel and Fabrice Lhomme, a fellow Mediapart journalist at the time, and who is now with French daily Le Monde). Also placed under investigation were Franz-Olivier Giesbert, the former editor-in-chief of weekly magazine Le Point, which had also published extracts from the butler’s recordings, and the magazine’s former editor, Hervé Gattegno.
At the end of his investigation the following year, Gentil decided to charge us and send us for trial. In the document detailing his decision, dated August 30th 2013, the magistrate made clear the awkwardness of the move. “The question of the eventual legitimacy of the publication of the litigious articles can in no way be decided by the [examining magistrate] in the secrecy of his office, but must be the object of an adversarial and public debate that only a court hearing can allow.” The magistrate added: “It would be perfectly vain to dispute that without the secret recordings made by Pascal Bonnefoy, and without their publication [...] the so-called ‘Bettencourt’ affair would not have followed the same course.”
The situation is totally absurd. We stand trial this week before the court in Bordeaux for having made public the recordings that in the very same courthouse the prosecution used as evidence with which to convict eight people in the ‘Bettencourt Affair’. Among them is Liliane Bettencourt’s former wealth and investment manager Patrice de Maistre. Nobody, obviously, accuses the justice system of having breached the personal privacy of one or the other person. During the trial earlier this year, the court in Bordeaux even played extracts of the recordings made by the butler and revealed by the press.
The legal correspondents present during the trial therefore had every legal right to reproduce the extracts of the recordings as they felt fit. Thus it would appear that what is acceptable within the process of the justice system is not acceptable within the process of providing information to citizens. What is acceptable evidence for the justice system, it would seem, is not recognised as acceptable evidence for journalists, who must resign themselves to trailing behind magistrates.
To bypass the laws governing the press is to show contempt for the freedom to inform which, in the words of Victor Hugo “is no less sacred than the principle of universal suffrage” and which he classed as being “the two sides” of a same coin. It was not for nothing that, on July 29th 1881 – 11 years after the return of a republican constitution in France – the country gave itself a fundamental law governing the press that carried this first article, as short as it was clear: “The printing press and the bookshop are free.” The bill’s adoption into law came after three years of parliamentary debate, with a majority of 444 votes in favour, and just four against.
During the 1789 French Revolution, freedom of expression was declared to be “one of the most precious rights of man” by the National Constituent Assembly’s Declaration of the rights of Man and the Citizen. But it took another 92 years before a coherent and protective law to that effect was introduced. Despite its imperfections, and some parts which have become outdated with the advent of the digital age, the 1881 law is a precious asset for France. Any attempt to circumvent it places it in danger.
There is often confusion in distinguishing between the freedom of expression and the freedom to inform, which are not exactly the same thing. The first, which applies no more to journalists than to any other citizen, concerns the right to freely express one’s opinions. The second requires that the press, through methodology and acquired knowledge, be able to publish true information, however much some may find disturbing. These two key freedoms are guaranteed under law since 1881.
They were reinforced several decades ago by the European Court of Human Rights (ECHR), the continent’s supranational court whose rulings on rights issues are absolute for EU member states. In 1976 it gave a landmark ruling on a case brought to it by a British publisher, Richard Handyside, which centred on freedom of expression. The ECHR found that freedom of expression was “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 the State or any sector of the population”, adding: “Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’". In 1996, another landmark ruling involved the case brought to it by a British journalist, William Goodwin, and which centred upon the protection of a journalist’s sources. Upholding that right to protect sources, the ECHR underlined what it called “the vital public-watchdog role of the press”. A good watchdog is one that barks, to the point of awakening its neighbours at night.
The spirit of democracy, precisely, consists of guaranteeing the possibility to question it, to disturb it, even to provoke it. In this complicated ecosystem, journalists have a mission to be elements of great disquiet, not by having the monopoly of opinion but, on the contrary, by considering that it is above all the facts, the accumulated truths, which make up the grand game of public conversation. Everyone is subsequently free to hold his own opinion, to debate issues and even have an argument with their uncle over dinner. That is why the French philosopher Claude Lefort (1924-2010) spoke of democracy as being a “tragic regime”, because it is the only one that must publicly manage the idea of its possible implosion - a privilege that the Bordeaux court must not help to abolish.
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- The French version of this article can be found here.
English version by Graham Tearse