Undermined freedom of the press

By Camille Frati Switch to French for original article

A recent ruling by the Court of Justice of the European Union (CJEU) on the financial press risks reinforcing the tendency to favour private interests over public information. A dangerous imbalance in a democracy. An analysis.

Every day, the freedom of press is in danger all around the world. This danger can be obvious and easily identified, as it is the case in the Ukraine where national and foreign journalists are targeted by the Russian army. Four of them have already died there while carrying out their mission: reporting, informing, relaying, seeing what the world cannot see with its own eyes. Other attacks on the freedom of press exist everywhere, even if they do not lead to murder. Even if they are less obvious, they are no less dangerous or damaging to the profession and above all to public information.

The financial press has been eagerly awaiting the ruling of the Court of Justice of the European Union (CJEU) in a case dating back to 2012. That year, the Autorité des marchés financiers (AMF) ─ the financial control body in France ─ identified several unusual transactions involving companies involved in a takeover bid, namely Hermès and Maurel & Prom. On two occasions in one year, two British residents placed buy orders for the shares of these companies just before an article in the Daily Mail, relaying rumours about their merger and the asking price, has been put forward. And when the AMF investigated these investors with their unerring sense, it discovered that what they had in common was that they had spoken with the author of the articles before they were published. The journalist in question, a well-known writer for the Daily Mail, made no secret of the fact that he counted these people among his contacts. The AMF considered that he had been complicit in insider trading ─ by disclosing information that allowed investors to anticipate an event and enrich themselves ─ and fined him €40,000.

Financial markets to be protected

The journalist challenged this decision before the Paris Court of Appeal. Before making a decision, the court preferred to refer the matter to the CJEU, which is the guarantor of European law and is the only body able to interpret the conformity of a judgment or a national law with European legislation. The backdrop is a potential conflict between insider trading legislation and freedom of the press. As with any complex case, one of the 11 Advocates General of the CJEU has been working on this particular case. Her conclusions, delivered in September 2021, have made the financial press shudder: "The Advocate General of the CJEU reduces the protection of financial journalists in the name of market protection", worries L'Agefi. Indeed, in her twenty-page conclusions, the very experienced Juliane Kokott considers that financial journalists have a responsibility in view of the consequences that the information they disclose may have on the markets. In this case, the shares of the concerned companies had risen by several percentage points after the articles were published.

The judges of the CJEU ruled last week. But not completely. Taking up Kokott's argument, they consider that the market rumours fall outside the usual framework of legislation and case law on the protection of journalists. The European Court of Human Rights had extended this protection to acts preparatory to a publication. The CJEU decided to set conditions so that financial journalists are not disturbed when they report on a market rumour with a regular source: "[The disclosure of inside information] must be regarded as necessary for the exercise of one's profession and as complying with the principle of proportionality". In the end, the judges left it to the Paris Court of Appeal to examine the specific case of the Daily Mail journalist.

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