Confidentiality of Business Prevention Procedures vs Freedom of Expression: Court of Cassation Ruling Analysis

Extract

[...] Therefore and in these circumstances, the Court affirms the predominance of confidentiality over freedom of expression. II. A necessary protection of corporate insolvency prevention procedures. Given that information on prevention procedures, it is particularly important to evaluate the legitimacy of this divulgation notably by making a distinction between the general and detailed information disclosed In fact, the disclosure of precise information carries a risk, which is why the Court provides a certain level of protection in this regard The distinction between general and detailed information In its ruling, the Court of Cassation emphasized the importance of distinguishing between the information disclosed by the publishing company and that published by other newspapers. [...]

[...] By publicly exposing sensitive details of the procedure, the disclosed information may negatively influence ongoing negotiations and compromise the search for an amicable solution. Thus, the relevance and sensitivity of the information for the public are highlighted, emphasizing the importance of protecting the confidentiality of information in such procedures.dures. In fact, the Court has noted that that these articles could only compromise the outcome of the amicable prevention procedure and weaken the situation of the Consolis group companies, and, consequently, that they constituted a manifestly unlawful disturbance ». [...]

[...] In light of this, the company epublisher ofdefended freedom of expression of the media and argued that her articles served to inform the public on financial issues.ispublic interestreal. The Court of Cassation thus had to determine whether the disclosure of confidential information related to the procedures for preventing the difficulties of companies constitutes a manifestly unlawful disturbance in the light of the freedom of expression ? The highest jurisdiction, in its ruling of 13 February 2019, thus held that the disclosure of confidential information by the publishing company constituted a manifestly unlawful disturbance, as the disputed articles did not contribute to a general interest debate but rather tended to satisfy the interests of the site's subscribers. [...]

[...] However, the latter is put in balance with the European principle of freedom of expression Facing these two principles that seem to oppose each other, an exception to the principle of confidentiality exists: the general interest Freedom of expression can thus prevail in certain conditions. The principle of confidentiality at the scale of freedom of expression Article L611-15 of the Commercial Code establishes the clear legal basis for confidentiality in procedures for preventing companies in difficulty. According to this article, ""any person called to the procthe conciliation procedure or an ad hoc mandate ( . [...]

[...] However, this principle is likely to come into conflict with a European principle, guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms: the freedom of expression. In fact, Article 10 of this Convention states that "Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.isre ». If this article guarantees freedom of expression, it nevertheless authorizes restrictions, which are ultimately necessary for the protection of the rights and freedoms of others. [...]