MORICE v. FRANCE JUDGMENT
29
especially outside the courtroom. He hoped that his case would enable the
Grand Chamber to clarify the interpretation of the Convention on that point
and to secure the protection of lawyers’ speech.
97. He proposed in this connection a formal approach to lawyers’
freedom of expression, based on the defence and interests of their clients, to
ensure special protection in this context for the purposes of Article 10 of the
Convention. Such an approach would also have the effect of dispelling the
ambiguity surrounding the status of lawyers, who participated in the smooth
running of the justice system but, on the other hand, did not have to adopt a
conciliatory posture vis-à-vis that system and its members, as their primary
role was to defend their clients. Being a key witness to the proceedings,
lawyers should be afforded a functional protection that was not limited to
the courtroom and was as broad as possible, in order to contribute
effectively to defending their clients and informing the public. Such a
functional approach would also make it possible to take effective action in
response to any excesses and abuses committed by lawyers in breach of
professional ethics and to preserve the necessary protection of judges from
frivolous accusations. Any abuse of the primary purpose of the strengthened
protection of the lawyer’s freedom of expression, namely to uphold the
rights of the defence, could thus entail sanctions.
98. In the present case, the applicant observed that his conviction could
be regarded as an interference with the exercise of his right to freedom of
expression. He did not dispute the fact that it was prescribed by law, namely
by sections 23, 29 and 31 of the Act of 29 July 1881.
99. Whilst he did not deny, either, that it pursued the legitimate aim of
the protection of the reputation or rights of others, in his view the idea that
the criminal proceedings against him sought to “maintain the authority and
impartiality of the judiciary” should be seriously called into question, as the
impugned remarks were, on the contrary, intended to strengthen, rather than
undermine, such authority. The applicant further submitted that the
Chamber had wrongly placed on the same footing, on the one hand, the
freedom of expression of lawyers and the public’s right to be informed
about matters of general interest, and on the other, the dignity of the legal
profession and the good reputation of judges; while the former were rights
guaranteed by Article 10 of the Convention, the latter were merely interests
that might warrant a restriction, which had to remain exceptional.
100. As to the interference and whether it was necessary in a democratic
society, the applicant took the view that it did not correspond to any
pressing social need and that it was not proportionate to the aims pursued.
101. The argument that there was no pressing social need was mainly
supported by the context in which the remarks were made, because the case
had received significant media coverage, as the Court had previously noted
in its judgment in July and SARL Libération v. France (no. 20893/03,
ECHR 2008) and as confirmed by the Chamber in paragraph 76 of its