CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 5 mars 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   177 5.3.2009   Press release issued by the Registrar   CHAMBER JUDGMENTS HACHETTE FILIPACCHI PRESSE AUTOMOBILE AND DUPUY v. France SOCIETE DE CONCEPTION DE PRESSE ET D’EDITION AND PONSON v. France   The European Court of Human Rights has today notified in writing its Chamber judgments [1] in the cases of Hachette Filipacchi Presse Automobile and Dupuy v. France (application no. 13353/05) and Société de Conception de Presse et d’Edition et Ponson v. France (no. 26935/05).   In both cases the Court held unanimously that there had been no violation of Article 10 (freedom of expression) and no violation of Article 14 (prohibition of discrimination) in conjunction with Article 10 of the European Convention on Human Rights, in respect of the applicants’ conviction and sentence for tobacco advertising.   (The judgments are available only in French.)   1.     Principal facts   The applicants are two companies incorporated under French law, Hachette Filipacchi Presse Automobile and Société de Conception de Presse et d’Edition, whose registered offices are in Levallois-Perret (France), and two French nationals, Paul Dupuy and Gérard Ponson, who were born in 1938 and 1964 respectively and live in Paris. The company Hachette Filipacchi Presse Automobile, which in 2005 became Hachette Filipacchi Associés, publishes a monthly magazine entitled Action Auto Moto of which Paul Dupuy was, at the relevant time, the publication director and manager. The Société de Conception de Presse et d’Edition published the Entrevue magazine, of which Gérard Ponson was the publication director.   The cases mainly concern the applicants’ conviction and sentence for advertising cigarettes by publishing photographs of the Formula 1 driver Michael Schumacher sporting logos of the M. brand of cigarette in 2002. The French courts pointed out, among other things, the danger of displaying cigarette brands in a sports-related environment that attracted the attention of the general public and young people in particular.   In the case of Hachette Filipacchi Presse Automobile and Dupuy , the applicants were fined 30,000 euros (EUR) and ordered to pay EUR 10,000 damages to the C.N.C.T. (national anti-tobacco committee) for indirect advertising of tobacco products by publishing, in Action Auto Moto , a photograph of Michael Schumacher celebrating his victory on the podium of the Australian Grand Prix. The lettering of the cigarette brand M., his team’s sponsor, could be seen on the sleeve of his overall. The right sleeve of another driver sported the W. brand of cigarette. In 2004 the judgment was upheld on appeal and the Court of Cassation dismissed an appeal on points of law lodged by the applicants.   In the case of Société de Conception de Presse et d’Edition and Ponson the applicants were fined EUR 20,000 and ordered to pay EUR 10,000 damages to the C.N.C.T. for illegal advertising of tobacco products by publishing in Entrevue photographs of Michael Schumacher sporting logos of the M. brand and a satirical photomontage showing packets of that brand of cigarette. In 2004 the judgment was upheld on appeal and in 2005 the Court of Cassation dismissed an appeal on points of law lodged by the applicants.     2.     Procedure and composition of the Court   The application in the case of Hachette Filipacchi Presse Automobile and Dupuy was lodged with the European Court of Human Rights on 1 April 2005 and the application in the case of Société de Conception de Presse et d’Edition and Ponson was lodged with the Court on 8 July 2005.   Judgments were given by a Chamber of seven judges, composed as follows:   Peer Lorenzen (Denmark), President , Rait Maruste (Estonia), Jean-Paul Costa (France), Karel Jungwiert (Czech Republic), Renate Jaeger (Germany), Isabelle Berro-Lefèvre (Monaco), Mirjana Lazarova Trajkovska (the Former Yugoslav Republic of Macedonia), judges , and also Claudia Westerdiek , Section Registrar .   3.     Summary of the judgment [2]   Complaints   Relying on Article 10 of the Convention, the applicants complained about their conviction for indirect advertising or unlawful advertising of tobacco products. They further complained under Article 14, in conjunction with Article 10, of a difference in treatment compared to the broadcasting by the audiovisual media of motor-sports competitions held in countries where tobacco advertising was not prohibited.   Decision of the Court   Article 10   The Court noted that in both cases the aim of the interference had been the protection of public health as provided for by the “Evin Act” of 10 January 1991. It agreed with the French Government that the restriction of cigarette and tobacco-related advertising was an essential part of a broader strategy in the fight against the social evil of smoking. Fundamental considerations of public health, on which legislation had been enacted in France and the European Union, could prevail over economic imperatives and even over certain fundamental rights such as freedom of expression. The Court pointed out that there was a European consensus as to the need for strict regulation of tobacco advertising and added that a general trend towards such regulation could now be seen worldwide.   The Court did not have to take into account the actual impact of an advertising ban for tobacco consumption. The fact that the offending publications were regarded as capable of inciting people to consume such products was, for the Court, a “relevant” and “sufficient” reason to justify the interference. In addition, as the French courts had observed, the magazines in question were aimed at the general public, and in particular young people, who were more vulnerable. It was necessary to take into account the impact of the logos on those readers, who were particularly attentive to success in sports or finance.   As regards the penalties imposed on the applicants, the Court found that the amounts were certainly not negligible, but that in assessing whether they were harsh they had to be compared with the revenue of high-circulation magazines such as Action Auto Moto and Entrevue .   The Court concluded that in both cases the interference in question could be regarded as “necessary in a democratic society”. Accordingly, there had been no violation of Article 10.   Article 14   The Court noted that in this complaint the applicants were challenging Article L. 3511-5 of the Public Health Code, which authorised the audiovisual media to broadcast motor-sports competitions in France – without concealing the cigarette brands displayed on vehicles, overalls or tracks – when the events took place in countries where tobacco advertising was authorised.   As the French courts had found, it was not yet feasible, by technical means, to hide lettering, logos or advertisements on footage used by broadcasters. However, it was possible to refrain from taking photographs of such signs, or to conceal or blur them, on the pages of magazines. The Court thus took the view that the print media had the necessary time and technical facilities to modify their pictures and blur any logos suggestive of tobacco products.   The Court further noted that, in connection with a dispute concerning footage of sports events shown several hours or days after it was recorded, the Court of Cassation had confirmed that the live broadcasting of a race constituted the sole exception to the ban on the indirect advertising of tobacco products.   The Court thus took the view that the audiovisual media and the print media were not placed in similar or comparable situations and held, in both cases, that there had been no violation of Article 14 in conjunction with Article 10.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.