JCP 1977. II. 22894 Subsequent developments Case SA Editions Plon v. Mitterand Subsequent Developments
27 May 1997
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Professor B. S. Markesinis

Cour de cassation

The court:

The Court: On the question whether the present claimants, M. and Mme Mitterand have title to protectthe private life of M. François Mitterand

Given that if everyone, regardless of rank, birth, wealth and present or future role in society, is entitled to have his private life respected, disclosures of any kind can be prohibited only at the instance of living persons, and given that as M. and Mme Mitterand do not allege that the memory of M. François. Mitterand has been besmirched by publications which are inaccurate or in bad faith or culpably frivolous, their claim under this head is inadmissible;

On the question of the intrusion into the private life of M. and Mme Mitterand:

Given that the judges below were entitled to find that certain passages in the book violate the private life of M. and Mme Mitterand, for example, such as those relating to the wish of M. François.Mitterand to keep his state of health a secret from his wife (p. 35), to the association of the latter with one of her grandchildren (p. 98), to. Gubler’s frequent visits to the house of Mlle P. 65), to conversations between the President and his daughter (p. 161), and to the fact that in 1981 the wife of the former head of state and his sons were kept in ignorance of his having cancer (p. 166-167);

But given that even if these violations of privacy give rise to liability under article 9 Code civil they cannot in this case, regrettable though they are, justify prohibiting publication of the work as a whole, seeing in particular that they form a very small part of it;

On the breach of medical confidentiality

Given that Gubler was convicted on 5 July 1996 for violation of professional confidence, a decision now unappealable and binding on the civil courts, and given that, as this decision correctly stated, violation of professional confidence is made an offence not simply in the public interest so as to ensure that practitioners of certain professions behave in a trustworthy manner, but also in the interest of individuals who need to have a guarantee of the secrecy of the confidential information which they are bound to reveal to another by reason of his position or profession, especially in medical treatment where it is indispensable that the patient have confidence that what he tells his doctor or allows him to see will not be revealed by him;

Given that article 4(2) of the Code of Medical Ethics provides that medical secrecy covers “everything that the doctor learns in the course of his professional treatment, that is, not only what he is told but also what he has seen, heard or learnt.”, so that as M. Gubler’s only contact with M. François. Mitterand was as his doctor, all the matters related in his book which were learnt or discovered in that capacity are covered by the medical secret owed to his patient, even if they also constitute an invasion of the private life or intimacy;

Given that as successors to M. François. Mitterand, M. and Mme Mitterand have vested in them his right to sue the appellants, bearing in mind that if Le Grand Secret was published after his death, the contract for publication was made on 8 November 1996, before he died, and given that M. and Mme Mitterand thus inherit not only the right to compensation for breaches of the medical secret involved in the communication of this confidential information to Gonod in May-June 1995 and then to Orban. during November 1995, as found by the criminal court, but also the right to obtain compensation for the publication which was agreed on 8 November 1995, a right which is not excluded by the decision of 17 July 1995 and whose recognition is not inconsistent with the principle of res judicata.

On the remedies

Given that the exercise of freedom of expression has constitutional value, as is shown by article 10 of the European Convention, but is subject to duties and responsibilities and can be subjected to certain formalities, conditions, restrictions and sanctions provided by law, if necessary in a democratic society to protect the health, reputation or rights of third parties and to prevent the disclosure of confidential information; and given that in this case it is necessary to prohibit the distribution of the work in question, since this is the only method of putting an end to the damage caused and to the criminal offence which it represents;

Given that the harm has been precisely evaluated by the first instance judges in the light of the circumstances of the case, including the fact that more than forty thousand copies have been sold, and that though the damages must not exceed the harm suffered, it is immaterial what the recipients choose to do with them,

For these reasons: (…) Dismisses as inadmissible the claim of M. and Mme Mitterand based on the invasion of the privacy of M. François. Mitterand; holds both Gubler and Editions Plon liable in damages, amounting to 100,000 francs to Danielle. Mitterand. and 80,000 francs to each of the other three persons affected; confirms the judgment upholding the injunction against distribution of the book Le Grand Secret issued by the President of the Tribunal de grande instance of Paris on 8 January 1996 and confirmed by the decision of 13 March 1996…

Civ. 1, 10 Oct 1995 (doctrine upheld) and CA Paris, 27 May 1997 (doctrine partially upheld): change possible as regards the of action of heirs).

See aforementioned Jurisclasseur “Civil responsibility”, fasc. 364 “publisher”: any publication revealing events concerning a person’s private life must be authorised by that person. The publisher is therefore liable (he is generally held jointly liable with the author) if he has failed to obtain any consent from the interested party (see on the privacy of the members of a royal family, Civ. 1, 5 Nov 1996). On the other hand, privacy is not infringed if the author bases himself on the autobiographical accounts produced by the interested party himself (Civ. 1, 10 Oct 1995: Bull. I, no. 356). The same goes if the published facts were common knowledge as the interested party himself “made a display of them” (Civ. 2, 22 May 1996: Bull. II. No. 106). The most notorious case to have highlighted the liability of the author and the editor as regards infringement of privacy is the publication, on president François Mittérand’s death, of his doctor’s book (“The Big Secret”), which not only breaches the right to privacy, but also medical confidentiality. On the basis of Article 9 of the Civil Code, the President’s widow and family naturally obtained an injunction dated 18 January 1996 for the immediate suspension of the distribution of the book; this injunction was confirmed by the Paris Court of Appeal on 13 March 1996 (JCP G 1996, II, 22632), then by the Court of Cassation (Civ. 1, 16 July 1997, Bull. I, no. 249), without prejudice to their right to obtain compensation for the damage already suffered., The defendants, contesting the right of the widow and family to sue, pleaded in vain that the publication had taken place after the President’s death, particularly as the publication contract had been signed prior to the death (CA Paris, 27 May 1997, JCP G 1997, II, 22894).

Note: With particular reference to the judgement of 10 October 1995, special note should be taken of the aforementioned judgement (Civ 2, 22 May 1996), which confirms this case law, and which has some similarities with the issues being discussed here. That judgement, relating to a case in which a father’s identity was being investigated and which was subject to considerable media interest as it involved a famous actor who had in the mean time died, holds that the facts invoked as constituting an infringement to privacy did not in fact do so, insofar as they had been obligingly revealed by the alleged father, in his own book of personal memoirs; furthermore, they did not infringe the plaintiff’s privacy insofar as such an infringement “supposes the existence of a reference or an allusion to the life of the person who is claiming the infringement”, which was not the case in the offending article. Regarding the publication of the book entitled “The Big Secret”, the Court of Appeal’s judgement holds that “the Mittérands, husband and wife, have, as part of Mr. François Mittérand’s estate, received the right to act against the appellants”, and all the more so because, even though the book came out after François Mittérand’s death, the publication had been decided before it. On that point, the Court of Cassation seems to have based itself, in that case (Civ. 1, 14 December, 1999, Bull. no. 345), on a more restrictive concept, pointing out that “the right to act in respect of privacy disappears when the person in question, the sole holder of that right, dies”. The fact remains that (see Jacques Ravanas, Jurisclasseur civil, fasc. 10) “if the right to privacy cannot be transmitted, and only belongs to the living (Civ. 1, 14 December 1999 préc.), the members of the family have the right to sue, as long as the rights of history are respected. They sue, at least partly, according to the injury to their own feelings (Civ. 2, 8 July 1981, Bull. No. 151). Whether or not they have rights in the estate is immaterial. Strictly speaking, the right of Article 9 of the Civil Code is not a family right; this cased law is the consequence of the tight links that exist between family members”.


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