Since 2010, according to the records of Mediapart’s lawyers, Jean-Pierre Mignard and Emmanuel Tordjman, we have been the subject of legal proceedings led, in succession, by a total of no less than 43 magistrates over our reporting of the so-called “Bettencourt affair”, which centred on the nefarious activities of the entourage of L’Oréal cosmetics firm heiress Liliane Bettencourt (see here and here). Over a period of seven years, and before both civil and criminal courts, Mediapart has been required to justify itself for having simply carried out its professional duties, those of reporting issues of public interest, and at the service of the public’s right to know.
As those who have followed the affair, it was Liliane Bettencourt’s major-domo, Pascal Bonnefoy, a whistleblower in his own manner, who decided to secretly record the conversations of the billionaire with various figures among her entourage, including business and financial managers and advisors, lawyers, notaries and hangers-on, in order to reveal and bring about an end to the extent and seriousness of the corruption amongst this inner circle who took advantage of the mental frailty of the billionaire. Bonnefoy sought no personal gain from the recordings which he passed on to Bettencourt’s daughter and only child, Françoise Meyers-Bettencourt, who in turn handed them over to the police and justice authorities.
Without his courageous initiative, there would never have been a “Bettencourt affair”, and Liliane Bettencourt, now aged 94 and described by Forbes magazine as the wealthiest woman in the world through her major stake in L’Oréal, would no doubt still be in the clutches of the various swindlers who sought to misappropriate part of her immense personal fortune. Indeed, everything was in place so that this organised gang could in all impunity continue taking advantage of Bettencourt, who suffered from a form of dementia; that was cruelly revealed by the secret recordings, along with the complicity they found at the highest level of the state, from within the Elysée Palace under the presidency of Nicolas Sarkozy. The success of the scam required that no-one outside of those involved would ever be made aware of the opaque dealings.
From the political executive to the upper hierarchy of the justice system – with at its centre the then senior public prosecutor of Nanterre, Philippe Courroye – a web of people had made the choice of doing everything to prevent the legal progress of the complaint subsequently lodged by Françoise Meyers-Bettencourt for the “abuse of frailty” to which her mother had fallen victim. Meyers-Bettencourt was deliberately discredited as a jealous and ungrateful individual, while the clique who spoke and acted in the name of her mother Liliane insisted that she was sound of mind and body, fit as a fiddle.
That pretence was undone during the summer of 2010 when it was plainly shown to be a lie, and when the public, dumbfounded, discovered what was hidden behind it. There was not only the revelation of how Liliane Bettencourt’s frail mental condition was taken advantage of by those around her for their personal enrichment, but also unveiled was a system of massive tax evasion, political funding, conflicts of interest on high and improper interference with the judicial process. The storm caused by the Bettencourt affair – the inauguration of what is today a commonly accepted demand for a crackdown on tax evasion and greater probity of those who hold public office – would never have happened without the revelation of the contents of the secretly taped conversations.
Mediapart’s role, with its investigative reports by journalists Fabrice Arfi and Fabrice Lhomme (who has since rejoined French daily Le Monde), was to be decisive. The Bettencourt affair, emblematic of journalism in the public interest which we hold dear, suddenly gave the online press a place as a new and significant media actor, with the audacity provided by its independence and the inventiveness of the digital platform. This professional awakening of investigative journalism which was followed by other media has since obscured to what extent it was, back then, an event that shook up many conformist and conservative attitudes, to the degree that Mediapart was subjected to an extraordinarily violent campaign against it, accused of employing “fascist methods”.
Beginning on June 16th and published throughout the summer, our series of revelations prompted a wide public debate that lead to a return to a (near) normality in the process of the justice system. Transferred later that year to Bordeaux from the law courts in the Paris suburb of Nanterre, the Bettencourt case was freed of the interference by the Nanterre public prosecutor’s office. The investigation was subsequently led by magistrates according to the traditional definitions of a judicial probe, and resulted in trials that were managed according to the proper legal manner, with sentences handed down for the crimes committed against Liliane Bettencourt. But, unfortunately, this return to the normal and proper course of the justice system did not include the treatment reserved for the press, and Mediapart in particular. In fact, it was quite the opposite, as illustrated by this appeal trial, which is the umpteenth episode of a grueling judicial saga.
Firstly, in civil proceedings launched against us in July 2010 in the name of Liliane Bettencourt and her wealth manager Patrice de Maistre, over our publication of the contents of the tapes, there were two verdicts (one in the first instance the other on appeal), that were favourable for the rights of the press, and which gave clear recognition of Mediapart’s legitimacy and professionalism in our handling of the publication of the tapes, of our respect of the rules concerning journalistic good faith, and of our care in not violating anyone’s right to privacy. But following that, the justice process became derailed, as if a section of the judicial institution was unable to accept that we exposed the wayward behaviour of some within it.
It was no doubt felt that we should be punished for our audacity which had unsettled too many interests and comfortable situations. The weapon that was chosen was profoundly unfair: while the press accounts for the legitimacy of its publications within a precise legal framework which protects the public’s right to information, as enshrined in a law of 1881, we were attacked over the origins of our information, namely the fact that the recorded conversations were made in secret. As with the often used accusation of illegally “receiving” the tapes, this argument is a judicial diversion around the law that protects the freedom to inform and it amounts, more or less, to an attempt to trace our sources while violating the status of secrecy that protects them.
Much of our information about sensitive issues is sourced via crimes committed by others – for example through the violation of professional secrecy, or that of judicial investigations, or classified defence secrets – but we are not required to be brought to account for that. We are only accountable for the public interest of what we subsequently publish – namely the legitimacy of the aim of our reporting – and the manner with which we handled the information in our possession, such as the diligence of our investigations, the respect of the right to reply, the tone of our reporting and the absence of personal animosity. So it is that in the case against the press that lies within the vast number of other cases of the Bettencourt affair, the justice system came off the rails with its non-respect of the rights accorded to the press and came out of its hinges with its dogged pursuit against us, a pursuit that borders on a hounding.
'What's at stake is far beyond the Bettencourt affair alone'
The appeal court decision favourable to Mediapart in July 2010 was followed by yet another appeal before the Versailles court of appeal. That found against us, a staggering ruling upheld by the highest French appeal court, the Cour de cassation, which led in the summer of 2013 to the censorship of more than 70 articles on Mediapart (see more here) which was ordered to remove all published quotes from the recordings.
Mediapart took its case against this unprecedented censorship to the European Court of Human Rights (ECHR) in Strasbourg, arguing that the French justice system had, in the ruling, contravened Article 8 of the European Convention on Human Rights, an article which defines the laws regarding respect of personal privacy, and also Article 10, which sets out the laws of freedom of expression and information. Mediapart’s submission to the ECHR was registered in April this year and is currently being studied.
But these civil proceedings against Mediapart were followed by a criminal case against us, also for breaching Liliane Bettencourt’s right to privacy, and it was that which was heard in the Bordeaux law courts at the end of last month. This criminal case is all the more questionable as its origin is legally dubious. It stems from a complaint filed on June 18th 2010 by one of Liliane Bettencourt’s then lawyers who claimed to act on her behalf whereas it is now established that, at the time, she was not in possession of all her mental faculties. Otherwise put, this second judicial front, zealously pursued by Nanterre public prosecutor Philippe Courroye before he was removed from the cases concerning the Bettencourt affair, was a counter attack launched by those very same people who were involved in abusing the billionaire’s mental frailty.
Unfortunately, the Bordeaux magistrates agreed to allow this vitiated procedure to prosper, tying up within the same case the major-domo and the journalists without whom the courts could never have led the case against those to whom Liliane Bettencourt fell victim, or even known about it. That led us to a first trial in Bordeaux at the end of 2015, when fortunately the presiding judges re-established the truth of the matter and our honour. The case against Pascal Bonnefoy and the journalists from Mediaparet and Le Point was thrown out, and in their ruling the magistrates praised their actions for revealing the wrongdoings within the Bettencourt household and thus protecting the ageing heiress.
They could not have reasonably done otherwise given that Liliane Bettencourt’s legal guardian, Olivier Pelat, appointed during the course of the scandal, told the court that he renounced all procedures against the defendants, explaining that the billionaire had no reason to complain of a violation of her privacy and could only welcome the fact that she was at last able to be protected against the group of swindlers who took advantage of her frail health. As a result, Pelat, the only person with authorization to act in her name in legal proceedings, refused to appeal the court’s decision to dismiss the case.
The matter should have ended there, with the facts as established by the court: that the major-domo had acted out of necessity by making the recordings, in order to protect his employer, with which he gathered the proof of the crimes committed against her; and that the journalists had respected their duty to inform by making public evidence that was of public interest and which was at the heart of a judicial investigation. However, the Bordeaux public prosecutor chose to persist with the case, to the point of judicial absurdity. By asking for us to be re-tried, and convicted on appeal, he repeated the argument that we had violated Bettencourt’s right to personal privacy, a claim that has no foundation given that the supposed victim in the case has no such complaint against us. It boils down to a simple question of legal logic: the public prosecution services cannot pursue us in a case where there is no victim.
The appeal court, presided by Judge Michel Regaldo Saint Blancard, will pronounce its ruling on September 21st. As was argued by all the lawyers for the defendants (who, apart from Mediapart’s lawyers Jean-Pierre Mignard and Emmanuel Tordjman, include François Saint-Pierre for Fabrice Lhomme, Renaud Le Gunehec for Le Point and its former editor Hervé Gattegno, and Antoine Gillot for Pascal Bonnefoy), what is at stake in the appeal court’s decision goes far beyond the Bettencourt affair alone. For it concerns the respect of fundamental democratic freedoms, namely the duty to alert attention to protect victims of abuse and the right to know in the context of what is of public interest.
In his unpleasant case against the press, public prosecutor Pierre Nalbert expressed his alarm at a journalism which he said sough to “open the floodgates”, handing itself every right to the point of returning justice in place of magistrates. In reality, far from attempting to penalize supposed excesses which the public prosecutor had great difficulty in identifying, his argument explicitly targeted our defence that we are part of a free press, playing an active role in the democratic vitality of a country. Listening to his argument, we said to ourselves that it should be interpreted as a call to “close the floodgates” of citizens’ right to know, and that the prosecutor was even at risk of playing at being an editor by explaining what we should have poublished, and what we should have remained silent about.
Enlargement : Illustration 1
These arguments from another age sounded bizarre in this beginning of a century where the digital revolution calls for a new democratic period. It is true that the décor surrounding the hearing was itself bizarre, mixing epochs to the point of losing one’s bearings. An outlier of the past under the Ancien Regime, that before the 1789 French Revolution, the courtroom where supposedly republican justice is delivered in the respect of secular laws, was dominated by a painting depicting Christ on the cross (see photo above left), hanging just above the members of the Court and facing the public benches. Fortunately, at the entrance is a curious statue of the 16th-century French Renaissance philosopher Michel de Montaigne (see photo above right), dressed in a modern-day suit, which reminds those who pass by it of a phrase from his collection of writings The Essays, (Essais), in which he wisely recommends against freezing a given epoch, and advises that one must not halt the march of time in which all things evolve: “I don’t sketch the being, I sketch the passage,” ("Je ne peins pas l’être, je peins le passage,") it reads.
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- The French version of this article can be found here.
English version by Graham Tearse