Exhibit C: Ruling of the French Judge
Abstract from the Clerk's report in Paris, France, from April 29, 2008
THE FRENCH REPUBLIC
In the name
of the French People
ABSTRACT
from the Clerk's
report
THE PARIS
COURT OF
FIRST INSTANCE
ENFORCEABLE
CERTIFIED COPY
Philippe OUAKRAT, Attorney
"S.C.P" (professional firm)
Registration No. E 377
TEMPORARY INJUNCTION
Issued April
29, 2008
by Joël BOYER, Assistant to
the Presiding Judge of the Paris Court of First Instance who presided
the public injunction hearing by delegation from the Presiding Judge
of the Court,
Assisted by Marlène MARQUET,
Court Clerk.
PETITIONER
Mr. Max MOSLEY
2 avenue des Citronniers
MC 98000 MONACO
represented by Philippe OUAKRAT,
attorney in Paris -E.377
DEFENDANT
NEWS GROUP NEWPAPERS LIMITED, a corporation
1 Virginia Street - London
United Kingdom E98 1XY
represented by Jean Frédéric
GAULTIER, attorney in Paris - K0112
ARGUMENTS
At the April 18, 2008 public hearing presided by Joël BOYER, Assistant to the Presiding Judge,
We, Presidents,
After having
heard the appearing parties or their counsel,
In light of
the summons issued at the time indicated which Max MOSLEY had requested
on April 15, 2008 after having obtained authorization to enter a ruling
from the Court's Presiding Judge for News Group Newspapers Limited,
a British corporation owner of the English language newspaper "News
of the World" and of the website "newsoftheworld.co.uk":
- stating that
the Sunday newspaper News of the World had published, in its March 30,
2008 edition, photographs taken from a video depicting him in a private
location engaging in sadomasochistic acts with prostitutes. The
newspaper included in its title and front page, a supposed Nazi connotation
of the scene and lead a call to strip him of the functions he holds
at the head of the International Automobile Federation,
- adding that
parts of the video in question were also included on the newspaper's
online website and that visits to the site had increased by 600% since
that time,
- indicating
that it would subsequently provide the French criminal judge with the
facts in accordance with Article 226-1 and 226-2 of the criminal code,
- requesting,
based on Article 9 of the Civil Code, that the Defendant, under a 25,000
Euros penalty per observed infraction, (1) to cease distribution in
France of any of the News of the World editions which contained an excerpt
whether previously published or not, of the video in question, (2) to
recall all copies of the newspaper currently being sold in France which
contain such elements, (3) to block any attempt from France to access
the site, page or server under Defendant's control which contain such
elements,
- requesting
legal publication containing this judgment in three French newspapers
of its choosing within a limit of 20,000 Euros for publishing fees,
- finally,
requesting that the Defendant pay the Petitioner damages in the amount
of 10,000 Euros pursuant to Article 700 of the Code of Civil Procedure,
In light of
the additional pleadings submitted by Petitioner, it requests that Defendant
also be barred from : (4) distributing in France, in any manner, any
excerpts whether visual or audio of the video or of any other recording
taken during the events which are in its possession, (5) to broadcast
or allow the broadcast or access, especially via internet, of any information
relating to the events contained in the video and specifically the sexual
activities or more generally, the private activities of the Petitioner
within the scope of the information contained the April 30 edition of
News of the World,
In light of
response contained in the pleadings by News Group Newspapers Limited
(thereafter NGN):
- indicating
that Max MOSLEY, through a procedure similar to this French request
for injunction, requested that the British judge enjoin NGN from broadcasting
the video or excerpts of it and that by decision dated April 9, 2008,
the judge refused to order such injunction, decision which Max Mosley
did not appeal,
- adding that
through a ruling issued on April 4, 2008, Max MOSELY requested that
the High Court of Justice rule on the merits, order damages and enjoin
the publication of confidential or private information, especially that
contained in the aforementioned article. A decision should be
issued during the month of July,
- prior to
arguing the merits of the case, the issue of lack of jurisdiction by
the French court was raised on the grounds that there is no contact
which would warrant French jurisdiction as it concerns the printed newspaper
as it was not established that it was distributed in France and that
the NGN's website was not specifically destined for the French public,
- the doctrine
of lis pendis was invoked in view of Article 27.1 of regulation no.2001/44
of December 22, 2000 to support British jurisdiction where the lawsuit
was first initiated although the suit involves the same parties, the
same facts and the same basis,
- whereas it
was argued that there was abuse of process in seeking from the French
judge a ruling on a petition previously presented to the British judge,
the ruling of April 9, 2008 should receive full recognition in
accordance with Article 33 of the aforementioned European Directive,
- opposing
to the last two requests [(4) and (5)] which were not added to the initial
requested until April 17th at 3:28 p.m. as their late introduction
did not allow the Defendant sufficient time to adequately prepare its
defense,
- requesting
that a judgment be deferred until such time as a decision from the High
Court of Justice Queens Bench Division render its judgment, in accordance
with Article 37.1 of the European Regulations,
- petitioning
the court to allow Petitioner's three initial requests until such
time, pursuant to Articles 1426 et al of the Code of Civil Procedure;
(1) to suspend distribution in France of any of the News of the World
editions which contained excerpts of the video in question, (2) to recall
all copies of the March 30 and April 6, 2008 newspaper editions which
may be sold in France, (3) to block any attempt from France to access
any video which may appear on a website managed by Defendant,
- in addition,
contesting the urgency and existence of imminent damage or confusion
which could be efficiently prevented or rectified, in light of the observations
of the British judge according to which many other websites repeated
the contested information or placed excerpts from the video online,
- finally,
invoking an important right which would prevent the injunction judge
from ruling on the matter; the public's right to information about
a man with high-level responsibilities which could justify publication
of excerpts from the video, which is interesting not for the Petitioner's
sexual escapades but for the obvious disdain he displayed for a tragic
episode of human history and specifically, that of Jewish victims,
- requesting
the sum of 10,000 Euros based on Article 700 of the Code of Civil Procedure,
REASONS
FOR THE DECISION
In its March
30, 2008 edition, the British Sunday newspaper News of the World published
photographs taken from a video depicting Max MOSLEY, President of the
International Automobile Federation headquartered in Paris, in a private
location engaging in sadomasochistic scenes with prostitutes.
The newspaper's title and headline read"F1 Boss has sick Nazi orgy
with 5 hookers".
Two short excerpts
from the video were subsequently posted online on the newspaper's
website showing one young woman wearing a military uniform, two others
dressed as prisoners and Max MOSLEY taking turns being the "victim"
or "torturer" with the women and addressing one of them in German.
The international
press repeated the British tabloid's revelations with varying degrees
of details, noting that Petitioner's father Sir Oswald MOSLEY had
founded the British Union of Fascists, a neo-Nazi group during the 1930's,
while many indignant voices spoke out in reaction to Max MOSLEY's
behavior throughout the world.
On April 8,
2008, Max MOSLEY petitioned the British Judge of the High Court of Justice
in London, in a hearing which the parties agree is similar to that of
injunction hearings in French, to request a temporary injunction barring
News Group Newspapers Limited (NGN) from broadcasting the video or excerpts
of it.
In a decision
dated April 9, 2008, the British Judge refused to order the injunction
for the main reason that such measure would be ineffective due to the
fact that the images in question had been reproduced or commented throughout
the world ("The dam has effectively burst [...]. Anyone who
wishes to access the footage can easily do so, and there is no point
in barring the News of the World from show[w]ing what is already available").
Max MOSLEY
did not appeal that decision, noting that since April 4, a petition
is pending with the High Court of Justice in London to review the merits
of the case and to order damages and an injunction to discontinue publication
of the confidential or private information concerning Petitioner.
The decision is expected during the month of July.
Max MOSLEY
noted that he was planning on filing a petition in French Criminal Court
pursuant to Article 226-1 and 226-2 of the Criminal Code based on an
invasion of privacy through disclosure or communication to third parties,
specifically in France, of images and words captured without his knowledge
in a private place, invoking his protection in France under French law.
1. Territorial
Jurisdiction
The Defendant
claims that Petitioner's requests are barred due to a lack of territorial
jurisdiction whether in terms of publication of the printed newspaper
in France or on the website which is accessible from France.
Under Article
5 of the Council of the European Union Regulations of December 22, 2000
concerning jurisdiction, the recognition and enforcement of civil and
commercial decision state that a "person domiciled on the territory
of a Member state may be judged in another Member State [...]
3) in tortious or negligent matters, before the court of the location
where the harmful act took place or is at risk of taking place",
the expression "location where the harmful act took place or is
at risk of taking place" addresses not only the location where
the act took place but also that where damages occurred. With
regard to the press, these motions have been interpreted to mean firstly,
the location where the publisher in question resides, and secondly,
where the distribution took place.
1.1 With
regard to the newspaper in its printed version, it cannot be reasonably
contested that News of the World is regularly distributed in France
and specifically in Paris which the Petitioner established by producing
a receipt for the purchase of the April 13, 2008 edition, available
in kiosks on the Champs-Elysees.
Although no
receipt was produced for the March 30, 2008 edition which is mostly
at issue and a copy of which is introduced, the Defendant's offer
to remove all copies of the March 30 and April 6, 2008 editions of News
of the World which may still be in France and to suspend all distribution
in France of a future edition of the newspaper which may contain an
excerpt with images of the video in question until a decision on the
merits by the High Court of Justice is reached, is sufficient to establish
that the newspaper is distributed in France and therefore, justifies
the territorial jurisdiction of the French Court to proceed with the
case.
1.2 With
regard to the website newsoftheworld.co.uk, it should be noted that
the website in question is published by a British company residing in
the U.K. and entirely published in English whereas the Petitioner who
is a British national resides in Monaco.
The fact that
the website, as any others, is accessible from France is not sufficient
to establish territorial jurisdiction of the French Courts which requires
the existence of a sufficient and significant connection between the
alleged tortious acts and France.
Petitioner
argues that the connection is established by the fact that the FIA is
headquartered in Paris, adding that NGN offered members of FIA's board,
which is to meet in Paris shortly, an opportunity to view the video
so that they could gain information as to the Nazi connotations of the
scenes in question.
However, as
FIA is an international association, the fact that it is present in
France is neither significant nor determinant. As a result, the
damage to the reputation of its President has no connection to the location
of the Association's headquarters and therefore, the damage suffered
by Max MOSLEY has no significant connection to France.
Therefore,
the motion regarding lack of territorial jurisdiction with regard to
NGN's website is granted, which renders without merit or moot any
other procedural arguments raised by the Defendant (litis pendance,
abuse of process, request to defer judgment), since the dispute can
only be judged in accordance with the paper copies of the News of the
World in France which may contain or reproduce contents taken from the
video in question and, if applicable, the publication or distribution
in France of any accompanying materials, except by internet, of the
video.
2. With regard
to the inadmissibility of the two additional requests
Defendant raises
the issue of late introduction of the two additional requests [(4) and
(5)] and request that they be deemed inadmissible.
However, it
should be noted:
- that the
two motions, one (4) regarding the ban on distribution in France of
any excerpts and in any manner whether visual or audio of the video
or any other recording in its possession and taken during the events,
the other (5) banning the broadcast or permission to broadcast or access,
especially via internet, of any information related to the events which
promoted the video in questions, are directly relevant to the initial
motion and are an extension of it,
- Defendant's
statements, repeated in its response and according to which NGN offered
members of FIA's board an opportunity to view the video could have
prompted Petitioner to requested that other images in NGN's possession
which have not been published could be included in the present petition
with regard to their status in France,
- Defendant
added its new demands in its brief without requesting an adjournment
as it was entitled to do,
- the arguments
Defendant presented did not distinguish between the various motions
and are directly related to the two additional motions which Defendant
argues should be inadmissible so that the date on which the additional
motions were introduced - the day before the hearing and in writing
- cannot be considered to have harmed Defendant as this hearing is
mostly oral, adversarial, and follows the principle of a fair hearing.
3. On the
Merits
Based on the
evidence produced and the parties' explanations, NGN purchased a recording
(at least a portion of it) from a prostitute who participated in the
acts - acts which Max MOSLEY participated in. Excerpts of the
video were published in Defendant's March 30, 2008 edition as well
as, according to Defendant's statements, in the April 6 edition, both
available in France.
We can deduce
from the tone of the articles published by News of the World regarding
that event, that they included the most significant images, as did the
website and the publishing company, by its own initiative for the International
Automobile Federation, which supposes that more complete recordings
than those presented to the public up to this point are within their
possession and could still be distributed.
The published
excerpts expose the intimate area of sexual relations between consenting
adults, which is not usually revealed to third parties without the concerned
party's approval.
Furthermore,
the fact that the images in question as well as the statements that
accompany them were recorded without Max MOSELY's consent in a private
location, is not disputed.
Petitioner
thus advances a valid argument that distribution in France through nationwide
distribution of the printed newspaper containing the images is not only
an invasion of his privacy but the tort is also covered and compensable
under Articles 226-1 and 226-2 of the Criminal Code.
It is noted
that Article 226-1 of the Criminal Codes punishes "the fact of
voluntarily invading one's privacy by any means:
1) by acquiring,
recording or transmitting words uttered in
a private or confidential manner with their author's consent,
2) by
taking, recording or transmitting the picture of a person in a private
location without their consent".
Article 226-2
of the Criminal Code punishes when one "keeps, divulges or allows
divulgation to the public or a third
party or the use in any manner any recording or document obtained through
one of the acts covered by the preceding Article".
Finally, Article
113-2 of the Criminal Code deems any infraction resulting from these
acts in France to constitute one of the facts which took place in France.
If we consider
that the picture and capture of words did not take place in France,
nonetheless, it is obvious that the distribution in France of any material
(in whole or in part) resulting from the video contains the material
element comprising the tort under Article 226-2 of the Criminal Code.
Is the alleged
invasion of privacy sufficient to cause illegal harm and in violation
of Max MOSLEY's rights in France through French law?
Defendant argues
in its defense that the information distributed to the public constitutes
only a revelation of the neo-Nazi practices depicted in Petitioner's
fantasies, the disregard Max MOSLEY, as President of the International
Automobile Federation, displayed for those sent to concentration camps
and more specifically for the Jewish victims of the Holocaust.
On that point
it should be noted:
- that the
honorable Justice EADY noted in his April 9, 2008 brief that the Nazi
connotation of the sexual games contained in the newspapers, advanced
and emphasized by the newspaper is "strongly arguable".
- that the
clothes worn by the young women, one in a military uniform and the other
two in stripped prisoners garb may bring to mind a prison scene but
do not necessarily bring to mind concentration or extermination camps
of the Second World War,
- on the medical
inspection of a prisoner's hair (Petitioner was in the role of the
prisoner at that time), Justice EADY, whose reasoning on this point
is mixed, stated that "it would appear, so far as one can see, to
have nothing to do with the SS",
- that the
fact that Max MOSLEY's statements in German to a prostitute who only
understands that language is not material.
From these
observations, it cannot be said that aside from the impact these scenes
will have on the Petitioner and the lasting effects they may have on
his life, they only depict sadomasochistic sexual fantasies.
There are times
when the public's right to information takes precedence over the right
to privacy, especially when the information is related to a person in
a high-level position and there is a risk that their behavior may influence
the manner in which they conduct public affairs. However, there
can be no benefit for the public to see or hear scenes depicting sexual
relations between consenting adults in a private location and for which
the pictures taken, the communication and transmission without the concerned
party's consent are criminal acts punishable in France.
Sexual relations
between consenting adults constitute the most intimate part of one's
private life and contain secrets and mysteries no one should be forced
to explain to third parties who cannot judge another person's desires,
fantasies or sexual fantasies.
To allow the
information on the ground that it constitutes the "public's right
to information" would not differentiate it from the human desire to
learn of other's vices and would amount to turning our back on one
of our most important liberties and the most basic respect for privacy
which is a part of it as contained in Article 226-1 and 226-2 of the
Criminal Code which specifically aim at protecting this basic right
as a sign of our civilization.
The distribution
in France of pictures taken from the recordings in question, as well
as the high level of probability that Defendant's own statements indicating
that other pictures taken from the recordings may be distributed in
France, amount to a harmful act which justifies the following:
- removal of
all printed editions of the News of the World newspapers published on
March 30 and April 6, 2008 which may still be available in France under
a 500 Euro penalty for each observed violation,
- disallow
distribution in France of any editions of the printed newspaper which
may still contain pictures showing Max MOSELY or which would report
his comments taken during the recording, under a 1,500 Euro penalty
per observed violation,
- disallow
broadcast or distribution in France through any means except on the
website, of any visual or audio excerpts from the video in question
or any other recorded video taken in the same location and at the same
time, under a 15,000 Euro penalty per observed violation.
On the other
hand, Max MOSLEY's additional motion to disallow broadcast of accessibility
to "any information related to the events" which exceed the
parameters of what is allowable under freedom of speech concerning a
matter now in the public domain and which constitutes a news item over
which anyone is free to think what it may or comment on it within the
limits imposed by law is not granted. This decision only concerns
the pictures and words taken from the recording in question which would
be distributed in France by NGN on paper or by video and not on the
website.
Given the nature
of these injunctions, they will be void if, within 30 days Max MOSLEY
fails to petition the French criminal court in its matter against NGN
or its editor on the grounds of invasion of privacy within Article 226-1
and 226-2 of the Criminal Code, as he indicated he intended on doing.
Furthermore,
the injunctions will become void if Max MOSLEY fails to pay the legal
fees so that the criminal prosecution may be pursued on these grounds.
It should be
noted that this decision does not bar Max MOSLEY from deciding on his
own, to share the recordings with members of the Association he presides
or to authorize anyone who has access to them to do the same.
Equity demands
that Max MOSLEY's request for payment of his legal fees be granted
in the amount of 6,000 Euros.
Given NGN's
offer to suspend distribution in France, under any format, of the pictures
in question until the ruling by the High Court of Justice is rendered,
there is no need to rule on the temporary injunction immediately.
THEREFORE
By joint decision,
available to the Court Clerk, in first instance,
Hereby partially
grants the motion for territorial jurisdiction
and finds that the High Court of Justice in London is competent to decide
the matter related to the website newsoftheworld.co.uk,
We find
jurisdiction lies with this Court to decide the other elements of this
case,
Overrule the
request for inadmissibility of the two additional requests made by Max
MOSLEY,
Overrule the
Lis Pendens doctrine and inadmissibility due to abuse of process and
delay of judgment,
Order
News Group Newspapers Limited, publisher of the British language newspaper
News of the World, distributed in France, to remove of all printed
editions of the News of the World newspapers published on March 30 and
April 6, 2008 which may still be available in France under a 500
Euro penalty for each observed violation after a 7 day period beginning
on the service date of this decision,
Enjoin
News Group Newspapers Limited from distributing in France any editions
of the printed newspaper which may still contain pictures showing Max
MOSELY or which would report his comments taken during the recording
of the sexual scenes from which certain pictures were published in the
March 30, 2008 edition of News of the World, under a 1,500 Euro penalty
per observed violation,
Enjoin
News Group Newspapers Limited from broadcasting allowing broadcast,
from distributing or allowing distribution in France through any means
except on the website, of any visual or audio excerpts from the video
in question whether they have previously been published or not and taken
from the recording of sexual scenes
where certain pictures were published in the March 30, 2008 edition
of News of the World, under a under a 15,000 Euro penalty per observed
violation,
These orders
and injunctions shall become void if, within one month from the date
of this order, Max MOSLEY has not started criminal proceedings against
NGN or its directors on the basis of the elements contained in his petition
pursuant to Articles 226-1 and 226-2 of the Criminal Code,
Furthermore, these orders and injunctions shall become void if Max MOSLEY fails to pay the legal fees within the time limits imposed by the criminal court so that the criminal prosecution may be pursued on these grounds in accordance with Article 226-1 and 226-2 of the Criminal Code,
We reserve
the right to order penalty payments,
We reject
Max MOSLEY's other demands and the other larger demands,
We order News
Group Newspapers Limited to pay Max MOSLEY the sum of 6,000 Euros on
the basis of Article 700 of the Code of Civil Procedure and order it
to pay all legal costs.
Issued in Paris
on April 29, 2008
The
Court Clerk The Presiding Judge
/signature/ /signature/
Marlène MARQUET Joël
BOYER
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