The court of Nanterre on Wednesday condemned the State for a search attempt carried out in 2019 in the premises of Mediapart as part of the Benalla case who, according to his judgment consulted by AFP, undermined freedom of expression and the secrecy of sources.
“The disputed search was neither necessary in a democratic society, nor proportionate to the objective pursued within the meaning of the case law of the ECHR (European Court of Human Rights)” on freedom of the press, considered the court.
An “interference in freedom of expression”
According to the judges, this search “therefore constituted an interference in the freedom of expression (…) all the more serious as a risk of breach of the secrecy of the sources can only be conceived in exceptional circumstances”.
Assigned by Mediapart, the State was ordered to pay the investigation site one euro in “full compensation for its damage”, to which are added 10,000 euros in application of article 700 of the code of civil procedure (legal costs), with order for the provisional execution of the judgment. The Nanterre court rejected the request for publication on the Ministry of Justice website requested by Mediapart.
Back to the Benalla case
On January 31, 2019, the site published sound clips of a conversation between the former Elysée official Alexandre Benalla and the former employee of En Marche! Vincent Crase dating July 26, four days after their indictment in the case of the violence of May 1, 2018 and in violation of their judicial review.
The Paris public prosecutor’s office had, in the following days, opened an investigation for “illegal possession of devices or technical devices likely to allow the carrying out of interception of telecommunications or conversations” and “invasion of the privacy of life private”. In this context, two prosecutors and three police officers had tried to search the premises of Mediapart, to have the recordings returned, an initiative strongly denounced by the site, several media and the opposition.
“Abnormal, special and serious harm”
For the Nanterre court, these investigations “necessarily implied access to the medium and its possible metadata which are likely to allow, directly or not, the identification of the source”, leading to “the risk, undoubtedly reduced with regard to the stated but nonetheless conceivable objective of accidentally revealing other sources”.
“In view of the nature of the freedom exercised and the attack on one of its pillars, the disproportionality retained implies by itself the existence of abnormal, special and serious prejudice”, affirm the judges.
At the time, the president of the site Edwy Plenel recalled that before the search attempt, Mediapart had undertaken to deliver a copy of the recordings to the courts, which the site did on February 4, 2019.
A “historic decision” for the Mediapart lawyer
Asked by AFP, the Paris prosecutor’s office did not wish to react. “We welcome this historic decision, which enshrines the freedom to inform and reminds the judicial authorities that the press is a place where we do not go with impunity”, reacted to AFP the lawyer of Mediapart, Me Emmanuel Tordjman. “Like freedom of expression, the media have protection and can only be touched with caution and proportionality,” he said.
“By sanctioning the abuse of state power, (the judgment) it recalls the vital necessity, in democracy, of independent justice and a free press”, reacted con side on the site of Mediapart Edwy Plenel, its president and co-founder.