Is the Secret too indiscreet? Does this biography that the journalist Bérangère Bonte devotes to Élisabeth Borne infringe the privacy of the Prime Minister, as the latter believes? “When a journalist describes in detail the conditions of my father’s suicide, when she makes intrusive remarks about my privacy, about the relationship with my son, with my ex-husband, when she spreads allegations about my health or my sexual orientation , how can I pretend that this could have been done with my consent? At some point, we want to say: too much is too much, ”she justified with our colleagues from the JDD.
“My client agreed to have a biography written about her career, some aspects of her childhood and her professional background. When the journalist began to dig into her privacy, especially her love life, Madame Borne refused to give her a third interview. We believe that the comments on her health, at a time when she was Ségolène Royal’s chief of staff, are far from her current functions and therefore from the heart of the news, “explains Me Sudre.
Regarding the links she has with her son Nathan, the lawyer considers “that they go beyond the framework of the freedom to inform the public and contribute nothing to the public debate”. As for the rumors about Ms. Borne’s sexual orientation, denied when the magazine Têtu interviewed her on the occasion of the 40th anniversary of the decriminalization of homosexuality, the lawyer underlines “that they do not have to be peddled or accredited in a biography when they are not justified by his commitments or his political positions”.
According to this press law specialist, who is claiming a symbolic euro in damages for moral damages, “only 7 passages representing approximately 150 lines, or approximately 6 pages out of 240 pages”, are concerned. “Contrary to what several media claim, the fact of redacting the passages infringing on privacy does not detract from the substance of the book”, she will defend at the hearing of next May 24.
For their part, the editions of L’Archipel will defend the work of the author who conducted “dozens of interviews, including two long interviews with Élisabeth Borne, as well as others with eminent members of her cabinet, his family and his close circle of friends”.
Le Point: What are the issues in the dispute between Élisabeth Borne and L’Archipel editions on May 24?
Julien Brunet: Madame Borne believes that certain elements of her private life, of an intimate nature, go beyond the framework of a biography. She requests the withdrawal of passages concerning in particular her health and her love life, on the basis of article 9 of the Civil Code. This request seems measured to me, and as such, it is likely to prosper. Asking for the total withdrawal of the work would seem disproportionate to the elements likely to create damage.
This litigation illustrates the eternal debate between the protection of privacy and the freedom of expression protected by Article 10 of the European Convention on Human Rights. How are these rights and freedoms reconciled when one is a prominent personality?
Karine Riahi: The judge will balance three rights of public order: the moral rights of the author, which protects him against any modification of the work by anyone other than him; the author’s freedom of expression, with its limits, in particular not to defame a person quoted in his book; and finally, the private life of the person quoted in a book or more directly that which is the subject of a biography.
Will the judge balance these different rights?
Julien Brunet: The role of the judge is to verify which of these rights is the most violated, or which of them must be the most preserved in the case submitted to him. In this case, the title of the book, La Secrète, is an element that the judge will take into account to balance the rights in conflict. This title, which was given by the author and the publishing house, shows that Elisabeth Borne wanted to remain secret throughout her life. The judge will assess in light of the title and other elements whether the words in dispute are problematic, and he may decide to withdraw some, but not all of them.
What is also important is the proportionality of the request in relation to the context. The judge will verify whether what is requested does not involve disastrous consequences, in particular on the costs generated by the reprints of the book. Here, the fact that the measure requested is not excessive is an element in favor of the plaintiff.
In the age of transparency, do courts tend to privilege the right to information?
Karine Riahi: There is no clear trend that favors freedom of expression or privacy more. A decision of March 11, 2020 rendered by the Court of Cassation recalls that a political personality has the right to a private life when the private elements concerning him do not have an “interest in the public debate”. In other words, if information of a private nature is interesting to bring to the attention of the public, the invasion of privacy will be more difficult to characterize.
In the case judged by the Court of Cassation, the plaintiffs (two former ministers) requested the withdrawal of photos published by a general public magazine on their vacation spot. The photos were finally removed from the website, because the magistrates considered that this publication did not participate in the public debate and that it involved an invasion of the privacy of the applicants. This notion of interest in the public debate is assessed on a case-by-case basis by the judge.
In the United States or England, this type of case would immediately arouse public interest…
Julien Brunet: In the United States, anything that can depict a public figure is in the general interest. Because the highlighting of family and private life depicts the moral character of the person and therefore his ability to administer as a public representative. The notion of morality is preponderant in Anglo-Saxon countries when it comes to public persons. If, on the other hand, you are a private person, it is the opposite: the judges are intransigent, the right to privacy and the right to image are rigorously protected.
Does this case show a stronger concern of public figures to protect their image?
Karine Riahi: Certainly. One can observe a greater concern for the image than before. And beyond the image, it is also a communication issue: you have to react quickly and take legal action at the risk of stimulating sales of the book. Interest? Give a signal in prevention of a future audiovisual adaptation, or show, in your future professional life, that you have not remained passive in the face of intimate revelations. Taking legal action is politically and personally essential.
