On November 18th, a bailiff arrived at Mediapart’s offices to deliver a legal ruling that is unprecedented in the collective memory of journalists and jurists.
The directive, established by a judge, is a gagging order that prohibits us from publishing an investigation of public interest. The ruling of the judge was made at the request of the person who was the focus of that investigation, and without any invitation for Mediapart to put its case. Mediapart was not even informed of the legal procedure.
The judge’s decision was taken without giving Mediapart the opportunity to defend its work and its rights, flouting the principle of a due hearing of both of the parties concerned. The gagging order she delivered is an arbitrary act which used a procedure that is totally foreign to the legal rights of the press as established by France’s freedom of the press law of July 29th 1881.
The ruling was made earlier in the day of November 18th by Judge Violette Baty, acting on behalf of the president of the Paris judicial court, Stéphane Noël, following a request filed that same Friday by Christophe Ingrain, lawyer for Gaël Perdriau, the rightwing mayor of the town of Saint-Étienne.
The judge enjoins us “to not publish” new revelations about the political practices of the mayor of Saint-Étienne. She stipulates that in the case that Mediapart does not comply with the court order it will be fined “10,000 euros per published extract”.
Mediapart’s revelations are notably backed by audio recordings like those that allowed us to reveal the video ‘sex tape’ blackmail scandal that targeted Saint-Étienne’s principal deputy mayor, Gilles Artigues, a potential centre-right political rival of Perdriau's, who was unknowingly filmed with a male escort.
The scandal was revealed by Mediapart in previous reports, in an investigation by our journalist Antton Rouget, and until now met with no legal challenge. The revelations prompted considerable emotion and concern in Saint-Étienne and the surrounding Auvergne-Rhône-Alpes region, within the conservative Les Républicains party (LR) to which Gaël Perdriau belongs, and even the French government, and were widely relayed by the national media.
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They led to the resignation of a deputy mayor in charge of the town’s education affairs and the sacking of Perdriau’s chief of staff. They also led to Perdriau announcing he was stepping back – but not resigning – from his responsibilities at the town hall, and also as president of the council of Saint-Étienne’s greater urban region, the Saint-Étienne Métropole.
But above all, Mediapart’s reports prompted the public prosecution services in the nearby city of Lyon, in whose jurisdiction lies Saint-Étienne, to appoint two magistrates to lead a judicial investigation into “violation of privacy, aggravated blackmail, breach of trust and removal of public property by a person in charge of public responsibilities”. The judicial investigations are ongoing, and several people were taken into custody in mid-September for questioning, including Perdriau.
Continuing with his own investigations, Antton Rouget has uncovered new evidence which again place in question the practices of the mayor, notably over the use of rumour-mongering as a political tool. This time the victim is high-profile conservative politician Laurent Wauquiez, the LR party's head of the Auvergne-Rhône-Alpes regional council, and whose presidential ambitions are well known.
These new revelations, like those before, are notably based on conversations during working meetings in the mayor’s office inside the Saint-Étienne town hall, and which were recorded by the victim of the sex tape blackmail, Gilles Artigues, in order to protect himself. Artigues has handed over all the recordings to the ongoing judicial probe.
When we were notified of the gagging order, Mediapart’s investigation had not yet been published, even though we had met all the requirements demanded of it, both journalistic and legal: namely, its public interest, its factual and material basis, and the respect of allowing all parties concerned to present their versions of the events in question.
Several individuals concerned by these new revelations, and notably Laurent Wauquiez, were contacted and subsequently provided their reactions. Gaël Perdriau was contacted at the beginning of last week by Antton Rouget in order that he could reply to the revelations. The mayor asked to be given until 1pm on Friday, which Mediapart willingly agreed to.
It was three hours after we received his detailed replies by email, at 12.47 pm on Friday, that the bailiff delivered the gagging order obtained by Perdriau. The Saint-Étienne mayor therefore knew very well what information he did not want to see published.
The gagging order came from a decision taken in all urgency, if not haste, without any public hearing nor exchange of arguments, arrived at instead in the secrecy of a conversation between two people: the lawyer of the plaintiff and the presiding judge. In the arguments submitted in the request to the judge, Perdriau deceptively claimed he was the victim of a violation of personal privacy which, had there been a public hearing, Mediapart would have shown to be completely untrue.
At the end of August, when the affair began, the mayor had already accused us, although without taking legal action, of publicly violating the “private life” of the victim of the sex tape blackmail, Gilles Artigues. At the time, we explained to him that if there had been a violation of his deputy’s private life it was not of our making, but was instead due to the practices in place at the town hall.
Furthermore, when, in our previous articles, we revealed extracts from the recordings that we are now prevented from publishing, Perdriau took no legal action, thus recognising the public interest of our reporting. The procedure, circumstances and context were the same, confirming the public interest of the investigation.
This summary ruling against Mediapart is legally based on two articles of France’s civil law code. One is Article 493, which concerns all jurisdictions, by which a judge’s “ruling on request is a provisional decision made without due hearing of the parties [editor’s note, an exchange of arguments] in the case where the applicant is founded in not calling on the other side”. Article 875, which sets out the “particular provisions of the commercial court”, states: “The presiding judge can rule upon request, within the limits of the competence of the court, any urgent measures when the circumstances require that they are not taken with a hearing of the parties.”
To our knowledge, this exceptional move has never been used in a case concerning the press. In itself, the fact that these two cited articles of law concern commercial courts underlines, to the point of the absurd, this misuse of legal procedure. In the event, the injunction addressed to Mediapart ordering it to not publish content was addressed to the managing director of our company, and not to its publishing editor who is the only person legally responsible for the editorial content of Mediapart.
As of its first article, the 1881 law proclaims that the “printing house and the book store are free” without restriction – otherwise put at the time by one of those behind the legislation as “the press and speech are free”. It signifies that the fundamental right to distribute news and opinion cannot a priori be hindered.
Putting an end to prerequisite authorisation and censorship – the weapons used by every regime to restrain the freedom of the press – the 1881 law repealed in one fell swoop 325 articles of 42 preceding laws governing the press, and annulled all previous sentences, without exception, that were handed down in their name.
Its politically liberal provisions allowed for the progressive construction of a profoundly democratic jurisprudence, with specialised courts and magistrates, which watches over the protection of a freedom which is not that of journalists but of citizens. Namely, the right to know everything that is of public interest.
The driving spirit is that there can be no attack against it by a banning of the revelation of truths which contribute to the public debate, however disturbing they may be. As for the eventual abuses committed by the press in the exercise of this freedom, they can only be punished a posteriori on the decision of independent judges, after public debate and, it must be repeated, a hearing of the opposing arguments of the parties concerned.
It is this essential, 141-year-old democratic conquest that the gagging order issued against Mediapart, delivered upon request, has thrown into the ditch. As long as it is not overturned, this liberticidal move prevents our readers – and public opinion in its entirety – from having knowledge of the new developments in a major political scandal at a national scale.
The gagging order is all the more alarming in that it follows a similar ruling made on October 6th by the commercial court in the Paris suburb of Nanterre in the name of business secrecy. The court, at the request of telecommunications and media group Altice and its founder and chairman Patrick Drahi, had no hesitation in banning French investigative website Reflets.info from publishing “new information”. The website has appealed the ruling.
Naturally, we have asked our lawyer Emmanuel Tordjman, from the Paris legal firm Seattle, to take every possible legal recourse to put an end, as quickly as possible, to the gaging order. It represents a democratic disorder that is a serious violation of a fundamental freedom – that which is described in Article 11 of the 1789 French Revolution’s Declaration of the Rights of Man and of the Citizen as “one of the most precious rights of man”. The overturning of the censorship will allow our readers to at last discover the new revelations of Antton Rouget’s investigation into the affairs at Saint-Étienne.
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- The original French version of this article can be found here.
English version by Graham Tearse
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Mediapart publishing editor Edwy Plenel further comments on the gagging order in the video below (in French).