Introduction to Human Rights Week 6: The limits of Human Rights IX. Rights subject to public order reservation: example Let us take a concrete example which illustrates the examination of the necessity of a restriction in a democratic society. It is inspired by the judgment Plon v. France. In this case, the European Court of Human Rights had to rule on a conflict opposing freedom of speech and the right to respect for private life. The case concerned the prohibition of the distribution of a book called "Le Grand Secret". This book had been written by a journalist and by the doctor who had treated the former President of France, François Mitterrand. François Mitterrand was suffering from cancer shortly after being elected President, in 1981. The book "Le Grand Secret" contained several elements protected by medical confidentiality, in particular regarding the diagnosis and the treatment. The book also mentioned the difficulties to keep the illness secret during François Mitterrand's presidency. Indeed, the President had committed to making his medical report public every six months. The book was published a couple of days after the President's death. The national bodies first issued an injunction with a temporary prohibition to distribute the book. The injunction later became definitive and permanent. This second measure was pronounced nine months after the President's death. The European Court of Human Rights had to decide whether these two measures, the temporary and the permanent prohibitions, were necessary to protect the confidentiality and the private life of the deceased and his relatives. These interests are protected by Article 8 of the European Convention on Human Rights which enshrines the protection of private and family life. In other words, the legitimate aim of the restriction was to protect the rights of others. There are two opposing Human Rights. There is a conflict between two rights: on the one hand, freedom of expression and, on the other hand, the protection of private and family life of the deceased and his family. In this practical case, which factors did the Court take into account in order to determine if, in this concrete case, the scale tipped in favour of freedom of speech or in favour of the protection of private life? Which factors tipped the scale on one side or the other? The fact that the information are protected by medical confidentiality is in favour of Article 8 of the Convention. Moreover, this information concern the President's private life. As for the seriousness of the interference, the Court considers that the passing of time must be taken into account. The interference is particularly serious right after death. During this time, the publication of the book and the debates that it provoked undermined the memory of the deceased. This information could only stir up the grief of the relatives. However, the interference becomes less serious as time goes by. Which factors weigh in favour of Article 10 of the Convention? First, the prohibition of distribution is a serious restriction of freedom of speech. The Court highlights it in many judgments. It also says that the value of a democratic society must also be taken into account. In a democratic society, prior restraint is considered as serious interference. This interference is particularly serious if the restriction is pronounced for an indefinite period of time, so if it remains in force for ever. In this particular case, it is what happened for the second order that was pronounced. It must also be taken into account that the injunction prohibiting the distribution was not the only measure taken. There were also some convictions for the violations of medical confidentiality. Damages were also granted to the victims. The fact that the book took part in an ongoing debate in France was also in favour of Article 10 of the Convention. This debate concerned the right of the public to be informed about the president's serious illnesses. The debate also concerned his capacity to hold that office, being aware that he was seriously ill. In other words, a political issue was at stake. The issue also concerned the transparency in politics. The values of a democratic society are therefore important again. In a democracy, it is important for political subjects to be openly debated. It must therefore be taken into account that freedom of speech does not only protect the private interests of the person who speaks but it also protects the interests of the collectivity - the interest being to live in a democratic society. Apart from the seriousness of the offence, the Court also took into account the suitability of the measure. When the injunction prohibiting the distribution was confirmed at the national level, that is to say nine months after the death, the information in question as well as some passages of the book had already been published online and via other channels. Under these conditions, the prohibition was not very useful. It did not amount to a pressing social need anymore. In the light of all these elements, the Court came to the following conclusion: the temporary prohibition of the distribution, pronounced a couple of days after the President's death, was justified. Therefore, the scale tips in favour of Article 8 of the Convention. Freedom of speech was therefore not violated. However, the enforcement and the confirmation of this prohibition, pronounced nine months later, was unjustified and was a violation of freedom of speech, especially as other penal and civil measures had already been taken. In other words, this second measure tipped the scale in favour of Article 10 of the Convention. Thanks to the example of the judgment Plon v. France, we have seen that the Court conducted a quite meticulous analysis. Sometimes, the European Court of Human Rights gives more latitude to States. You will have noticed that by reading the Handyside's judgment. In this judgment, the European Court of Human Rights lays the foundations of a theory which plays an important role in its case law: the so-called theory of the national margin of appreciation. This theory is based on the subsidiary role of the control by an international body. As the Court noticed in the Handyside's judgment, national authorities know the situation better. They have a more direct contact with the people. This is one of the reasons why the Court shows a kind of restraint and gives them a little room for manoeuvre. This room for manoeuvre varies according to a set of criteria. It is often decisive for the outcome of the case to know whether the Court leaves a wide or a narrow margin of appreciation to the national bodies. Let us remember that the State always wins when the margin of appreciation is wide. On the other hand, the individual has a great chance to win the case when the margin is very limited. How to know if the Court will leave a big margin of appreciation to States or not? According to the Court, a whole set of criteria is relevant. First, the nature of the right in question and the activity at stake. The margin of appreciation is for example narrow when a restriction of freedom of speech concerns political speech or when an interference with private and family life concerns sexual relations, that is to say intimate life. On the other hand, the room for manoeuvre is big when the activity in question concerns a complicated or technical field such as urban planning or unfair competition. The Court also takes into account the purpose of the restriction. When the purpose is based on public morality, the Court believes that States have a wide margin of appreciation because morality varies according to time and space. Besides, it was the decisive element in the Handyside judgment. The practice of States is another decisive element. The more the practice of States is uniform, the more the margin of appreciation is narrow. The more it is disparate, the more the margin of appreciation extends in order to accommodate national specificities. According to the European Court's terminology, the presence or the absence of a European consensus needs to be established. Is it justified to grant a wide margin of appreciation to States according to these criteria? This issue is debated. It is debated both in the doctrine and among the various control bodies. Indeed, this theory is not adopted by all control bodies. This theory has, for example, no place in the case law of the Inter-American Court of Human Rights. It is not applied by the Human Rights Committee either. In the European system, a wide margin of appreciation is vindicated by some and rejected by others. In the two remaining weeks of this course, we will have the opportunity to listen to an interview with a former judge of the Court. He will also talk about this issue. So, keep it in mind.
