On 10 January 2013, the European Court of Human Rights ("ECtHR") held that convictions based on copyright infringement could be in breach with the right of freedom of expression and information under Article 10 of the European Convention on Human Rights ("ECHR").
The case was brought by three fashion photographers who had published photographs of the Paris fashion shows on their website without the permission of the fashion houses. The French courts held that the photographers had infringed the copyright of the fashion houses and that they could not rely on an exception in French copyright law allowing the reproduction of works exclusively for news and information purposes.
The ECtHR confirmed the application of Article 10 of the ECHR in this case which guarantees each person the right to freedom of expression. The ECtHR maintained that this right may be subject to some restrictions, but these restrictions are only allowed if the interference with the right to freedom of expression is (i) prescribed by law; (ii) pursues a legitimate aim; and (iii) is considered necessary in a democratic society. Any exceptions to the right of freedom of expression must be construed strictly but national authorities enjoy a wide margin of appreciation assessing these exceptions.
In the case at hand, the ECtHR did not consider that the national judge had exceeded its margin of appreciation. Moreover, the ECtHR took into consideration that the applicants had published the pictures solely for commercial purposes and there was no general interest for society at stake. Hence, the ECtHR considered that the national court had rightly held that the balance tipped in favour of the protection of intellectual property.
The judgment confirms that copyright enforcement could in some circumstances be regarded as an illicit interference with the right of freedom of expression. It is up to national courts to balance copyright protection with the right to freedom of expression relying on the guidance provided by the ECtHR.
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