Mr. Ylli PANGO R.G. No.: 09/12294 60 / 1, Ali Visha TIRANA - ALBANIA represented by Anne PIGEON BORMANS, a lawyer Bar PARIS, cloakroom: D1276
Company SA FRANCE 24 CASE 5 rue des Nations Ylli PANGO 92130 Issy Les Moulineaux represented by Camille Bauer, Rechtsanwalt C / PARIS, cloakroom: C1261 Company SA FRANCE 24
The case was argued December 15, 2010 public hearing court composed of: Nicole Girerd, First Vice-President Marianne Raingeard, Vice-President Benedict CHAMOUARD,
Judge who deliberated. Clerk during the debates: Genevieve Cohendy
pronounced publicly in the first instance, by decision And contradictory provision in the court pursuant to notice given to the outcome of discussions
FACTS AND PROCEDURE
Ylli Pango is an Albanian politician. He has served as Minister of Culture, Tourism, Youth and Sports of the Government of Albania from 2007 to March 2009.
On March 4, 2009, Albanian television Topchannel aired a video made by hidden camera showing Ylli PANGO in his office at the ministry, then to his home, saying some trial moved to a young woman, a former candidate emission Reality TV, come for a job interview.
The dissemination of this video has led to the dismissal of Ylli PANGO from his position as minister.
The latter appealed to the District Court of Tirana court that sentenced June 18, 2010 the Albanian TV station to € 400,000 in damages for the injury caused by the violation of his privacy and his right to image.
The TV channel FRANCE 24 French international news channel, aired the video on its website, as Ylli PANGO did see Maître HAUGUEL, bailiff at Paris, June 29, 2009.
By act of October 5, 2009, Ylli Pango to assign the company is FRANCE 24 before the Tribunal de Grande Instance of Nanterre visa sections 9 and 8 of the Civil Code of the European Convention on Human Rights, to obtain removal of this video and compensation for damage resulting from its broadcast.
The closing of the investigation was ordered November 8, 2010.
CLAIMS AND MEANS
Recent findings by 11 August 2010, Ylli PANGO asking the court to order the company to pay FRANCE 24 € 200,000 in damages in compensation for moral damages resulting from infringement of his rights to privacy and image.
He asked the court to order the withdrawal of the video in question and his comments on the website of the defendant company, and to ban on-call this company to make use of this video.
It seeks the condemnation of that society to the publication of this decision on its website. He asked the court to order the company to FRANCE 24 costs, including fees and expenses of the bailiff who made the statement, payment of € 10 000 on the basis of Article 700 of the Code of Civil Procedure and the provisional execution thereof.
Ylli PANGO challenging the invalidity of the originating summons by the company opposed FRANCE 24. He admits that the provisions of the Act of July 29, 1881, will apply when the infringement at the image and private life is inseparable from defamation. He argues, however, he has referred in his assignment as interference with his privacy and his right to the image, to the exclusion of any defamation.
Ylli PANGO stresses on the bottom that public information can not justify resorting to illegal means, such as capturing images without the knowledge of the subject, as in this case. He estimated that the images representing him in his office and his home violate his privacy and his right to the image, as well as the release of its mobile phone number. He argues that the dissemination of this video was not essential to public information, as other media outlets chose to report information without broadcasting the video in question. Ylli PANGO contends that whether the location filming is a private home or business.
He said that the phone number disclosed was a private number.
It argues that the use of a hidden camera may be legitimate. He believes that in this case information obtained by the journalist from an unjustified provocation, characterized by the court of Tirana and beyond the mere identification of an existing fact. He finds this unfair provocation on the part of the journalist.
Ylli PANGO argues that the provisions of Article 93-3 of the Act of July 29, 1982 concerning violations of the Act of July 29, 1881, which are not wanted here. He denies that the section in which the video was aired can be described as an "area of personal contributions identified as such," since the documents used in this section are the subject of a journalistic treatment prior to their publication.
Ylli PANGO sets harm the dissemination of the video in question, especially given the fact that her duties involve missions abroad. This injury is aggravated by deficiencies in his professional society FRANCE 24.
Recent findings by the Sept. 17, 2010, FRANCE 24 calls in limine to the court to quash the subpoena issued against him Oct. 5, 2009. She asks in the alternative the court to dismiss its claims PANGO Ylli, ordered to pay costs, with direct right of recovery for the benefit of Master Camille Bauer, as well as payment of € 5,000 on the basis of the provisions of Article 700 of the Code of Civil Procedure.
FRANCE 24 exposes the company to support his application to quash the subpoena that the action brought against him tends to repair the damage caused by the factual allegations of sexual harassment, acts likely to damage his honor and its consideration. It therefore considers that action is subject to public order provisions of Article 29 § 1 of the Act of 29 July. It emphasizes the dissemination of the video can not be sued separately on the basis of Article 9 of the Civil Code, since it is inextricably linked to what it shows and the applicant does not isolate parts of this video he considered prejudicial to his rights of personality. It concludes that the subpoena should be annulled pursuant to the provisions of Article 53 of the Act of July 29, 1881.
Society FRANCE 24 contests in the alternative any breach of privacy and image rights of the applicant. She stressed that it was exposed, its functions and as a politician, the public's curiosity. It recalls that all information within the protected sphere may affect the exercise of public office can be released, as is the case here according to her. She also argues that the facts are related to the function and the applicant's professional life, which are not part of his private life, since it receives the young woman for a job interview.
While admitting that the broadcast of a private telephone number may constitute an invasion of privacy, she said qu'Ylli PANGO provided no evidence that this is not his business phone number.
FRANCE 24 the company believes that the dissemination of the video enables visitors to enjoy the status of women in Albania, about which is the subject of a debate of general interest and it had to be treated. She argues that the choice of distributing the video in question within its editorial line on which the plaintiff did not intervene.
She recalls that she did not realize the video broadcast. She argues that using a hidden camera was justified by the interest of the public to be informed of facts which could not otherwise be disclosed.
FRANCE 24 is the company to further alternative it has acted as a communication service to the public within the meaning of Article 93-3 of the Act of July 29, 1982, as amended by the Act of June 12 2009 called "Hadopi. She therefore believes that its liability should be assessed under this statute. It emphasizes in this regard have stopped distributing the video in question once it has been advised of the illegal nature of its contents by the applicant or 9 months after the start of the broadcast.
The company contends FRANCE 24 further alternative that the plaintiff provided no evidence of harm to which it refers. She argues that the loss of his job as minister is not attributable to its broadcast of the video, which was previously published by other media. She emphasizes that it has already been compensated by the Court of Tirana in Albania suffered the injury.
REASONS FOR DECISION
The application for cancellation of the assignment
Under Article 53 of the Act of July 29, 1881 on the press, the citation said, described the act in question and indicates the legislation applicable to the prosecution, under penalty of nullity.
Ylli PANGO is in its assignment of the Civil Code sections 9 and 8 of the European Convention on Human Rights, both relating to the protection of privacy. After recalling the context in which the dissemination of the video in question was made by the defendant company, Ylli PANGO describes violations of privacy and image rights that accuses the company (5-7 pages) .
It stresses the illegality of obtaining the video dispels any right to public information (page 6). He calls a fault "capture images without the knowledge of the person", including under the French criminal law (page 6). He stressed that "the images of the Minister, in his office, then to his home, conducted without his knowledge and under false pretenses, are an affront to his privacy and his right to the image. The interview in which they were made was fraudulently induced by the pseudo-journalist Topchannel, they can not be justified by any news event, nor any legitimate interest of the public. Similarly, the spread of mobile phone number of Mr. PANGO, perfectly legible on screen, violates his privacy, and is not justifiable "(p. 7). He concludes that "damage the image and to privacy is clearly established, the court finds the illegal distribution and condemn the defendant to pay Mr. Ylli PANGO damages in compensation for damages suffered moral and professional" .
Ylli PANGO denounces not in his summons, injury to reputation caused by accusations of sexual harassment resulting from any video content, but does the dissemination of images showing him in private moments and revealing his phone number.
There is therefore no need to redesignate the violations of privacy and image rights for defamation. The provisions of Article 53 of the Act of July 29, 1881 do not find applicable.
Society FRANCE 24 will be dismissed her application for cancellation of the summons issued against him by Ylli PANGO.
On invasion of privacy and image rights
Articles 8 of the European Convention on Human Rights and 9 of the Civil Code guarantee every person, whatever his reputation, his fortune, his present duties to come and respect for his private and his image. Article 10 of the Convention guarantees the right to information media in the limit of the rights of others. The combination of these two principles leads to limiting the right to public information, on the one hand, elements within the official life of public figures and, secondly, information and personal images delivered with permission concerned or justified by current interest. The video in question shows initially Ylli PANGO in his office talking with the reporter harboring the hidden camera. If this interview is designed for obtaining by it for work and therefore relates to the profession of Minister Ylli Pango, it was filmed without his knowledge, in a place that was not at this time open to the public at a time when it could reasonably be thought protected from fixing its image. The video in question unveils mobile number. It shows some pictures of his home and himself, in casual attire does not conform to that sported a minister or a politician in his official capacity. It thus reveals the elements of the privacy of the applicant and reproduced his image without his consent.
The use of hidden camera can be justified by the legitimate interest of the public to be informed, especially when the information could not be obtained without recourse to this technical device.
The public's legitimate interest in being informed and contributing to a debate of general interest can make public certain of privacy of third and reproduce his image, provided that journalists are acting in good faith on accurate factual basis and provide reliable and accurate information in respect of journalistic ethics.
The fact that a sitting minister asks a young woman undressing in a job interview can legitimately be disclosed to the public, given the importance of its functions.
Albanian judicial decisions, from both the Prosecutor and the Court of Tirana, however, suggest that a journalist appear, Alma MUKAJ, had obtained an interview with the applicant, in which the latter had shown in her right. She filmed a second interview with a hidden camera. Noting that the appointment took place in early evening television TOPCHANNEL asked a second reporter, Alkid Budin, contact an applicant using the telephone line MUKAJ Alma. The journalist, former winner of a reality TV show, got a job interview which was filmed in the department, then "it was willing to file the documents" necessary for his employment "at home of "Ylli Pango, where the disputed scene was filmed.
Albanian TOPCHANNEL chain has successively sent two journalists to test the applicant's conduct. In both cases, these journalists have canceled an appointment in the department, at which they should bring documents to bring the claimant's home.TOPCHANNEL chain has therefore adopted unfair methods. She can not hide behind the need for information to justify violations of privacy and image rights of the applicant.
FRANCE 24 the company produces no evidence to show that the phone number was professional or broadcast was made public by the applicant.
The provisions of Article 93-3 of the Act of 29 July 1982 relating to the responsibility of the editor of a communication service to the public with a space of personal contribution to the public concerning an offense under Chapter IV of Act of July 29, 1881.
In any event, FRANCE 24 recognizes that the contested Internet category "covers international affairs through the direct testimony of 'observers', that is to say, those who are at the heart of events. Videos, texts, photos: all content published on this site come from amateurs' but they are selected, verified, translated and explained by journalists of France 24. It can therefore be classified as personal space contribution and therefore benefit from the responsibility of lean Article 93-3 of the Act of July 29, 1982.
Society FRANCE 24 will therefore respond to violations of the right to privacy and the image of Ylli PANGO. The damage
The only finding of infringement of the respect due to privacy and image through the press to be compensable, the amount being supremely appreciated by the trial court based on the content of the publication and its distribution France and the appropriate elements freely discussed by the parties.
It should be noted that this court lacks jurisdiction territorially to compensate moral damage suffered by the plaintiff outside of France.
Case of an infringement in the image and to privacy, there is no need to consider the consequences of the dissemination of the video issue on the honor and reputation of the applicant. The latter can not be compensated in this instance of the inconvenience that the dissemination of this video could cause him in his missions to France or the French, resulting from allegations of sexual harassment contained in the video.
Images from home are particularly elusive, showing a door and walls. The dress in which he appears is devoid of ridicule or indecency, particularly in view of her as a politician.
Ylli PANGO does not allege that finally the release of its mobile phone number he had caused particular annoyance.
It therefore does not justify that harm principle, which will be fully repaired by the condemnation of society FRANCE 24 to pay € 1 in damages and a ban on penalty which will be made in terms of device , to use the video in question, but the measurement of publication sought to be justified in this case.
The request to withdraw the video web pages of the defendant company is irrelevant, since it is not disputed that the company has made the withdrawal shortly after receiving the originating summons.
There is no place in any case to order the withdrawal of the comments accompanying the video. These comments take the example of the applicant's resignation, objective fact and public to deal with the situation of women in Albania, topical protected by freedom of the press.
The claims accessories
Society FRANCE 24, the losing party will pay the costs. Costs will not include the bailiff's fees for conducting the observation made in the discussions, since the intervention of that public officer is not the result of a court decision.
FRANCE 24 will be the company also ordered to pay € 2,000 to Ylli PANGO on the basis of Article 700 of the Code of Civil Procedure.
The provisional execution, necessary and consistent with the nature of the case will be ordered. FOR THESE REASONS
DENIES the end of inadmissibility of the invalidity of the subpoena raised by the company FRANCE 24
FRANCE CONDEMNS the company 24 to pay 1 € in damages to Ylli Pango compensation for moral injury,
DONE ban the company FRANCE 24 proceeding to any publication by any means whatsoever, and under penalty of € 1,000 per infraction from the significance of this decision, the video showing Ylli PANGO conversing with Alkid Budin journalist TOPCHANNEL Albanian television in his office at the Ministry of Culture and at his home
RESERVES possible liquidation of the penalty,
FRANCE CONDEMNS the company 24 to the costs, which will not include costs incurred for the execution of bailiff product
FRANCE CONDEMNS the company 24 to pay € 2,000 to Ylli PANGO on the basis of Article 700 of the Code of Civil Procedure
REJECTS other parts of their applications or more,
ORDER the provisional execution of the decision.
signed by Nicole Girerd, First Vice-President and Genevieve Cohendy, Clerk present during the delivery.