France – Defamation
Introduction to French defamation and privacy law and procedure
The privacy jurisdiction France is more claimant-friendly than in England and the U.S. The starting point in a French defamation claim is the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. In contrast to the French law of privacy, the libel jurisdiction is generally more defendant friendly. This is due to the numerous procedural formalities which must be followed by the claimant. For example, there is a limitation period of three months, and a defamation claim must be notified to the Public Prosecutor, failing which it is void.
Defamation law
Defamation law in France is made up of a combination of statute and case law. According to the Act of 29 July 1881, known in France as "le droit de la presse" ("the press law"), defamation is defined as "any allegation or imputation of an act affecting the honour or reputation of the person or body against whom it is made". As under English and German law, the person or body does not need to be expressly named in order for a claimant to bring a defamation claim; it is enough if the claimant is clearly identifiable.
In a libel action, the claimant has to prove:
-the publication of a statement to a third party in France,
-which refers to the claimant,
-and the meaning of which is defamatory.
In every case, the claimant must not only precisely identify the words alleged to be defamatory but must also explain exactly why he or she believes the words are defamatory of him or her. Moreover, the words complained of and legal sanctions sought have to be expressly quoted in the writ, otherwise the claim will be void. Unlike in England, there is no set procedure in France for striking out a claim which is not capable of bearing a defamatory meaning, no special differentiation of levels of meaning and no conduct rule.
Insults
Defamation relates to factual statements or opinions. If, in contrast, the statement complained of is a bare insult (which is not capable of substantiation by a defendant), then the defendant has a much more limited opportunity to defend the claim. According to the Act of 29 July 1881, "insult" is defined as "any offensive expression, term of scorn or invective not involving the imputing of any action". Thus, the defendant will be liable for mere use of any term recognized as insulting unless the defendant can successfully plea that the insult was the result of provocation by the claimant, in which case the author of the insult can be exonerated from liability. If the claimant wrongly categories the claim as a defamation rather than an insult (or vice versa), then his claim will be rendered void.
Publication
Publication occurs if the allegedly defamatory material is read, heard, accessed or seen in France. Thus, Internet publications will be published in France if someone accesses the website in France. A single instance of publication in France is sufficient to bring an action whether or not a website or hard copy publication is directed at France.
Responsibility
Everyone involved in the publication or broadcast is potentially liable, e.g. the publisher / broadcaste r/ editor, as well as the author / journalist.
Limitation
The claim must be lodged at the court within a period of three months starting from the date of first publication or broadcast. Once this period of three months has expired, no legal action can be taken. Like in the U.S., but in contrast to position in England and Germany, there is a single publication rule in relation to Internet publications. The limitation period starts once the publication is made for the first time. Only if the publication is re-released in modified form can the limitation period start again.
Defences
There are two main defences to a defamation claim: truth and good faith. Unlike in the UK and Germany, there is no separate defence for statements of opinion. The opinion must either be proven to be true or fall within the defence of good faith.
Truth
Truth is a defence. However, it is not possible to justify an allegation if the facts relied on:
-are more than ten years old,
- relate to a matter on which there has been a political amnesty, or
- relate to a person whose criminal offence has been rehabilitated.
The burden of proving the truth of the allegation is on the publisher/broadcaster and the author. Unlike in the UK, the truth is judged by three judges, and not by a jury. As in the UK, publishers and broadcasters must take into account the 'repetition rule' which states that the sentence "X said that Y is a thief" means that "Y is a thief", not that X said it. Therefore it is not enough to prove that another person has previously made the same allegation.
Good faith
Defendants who are unable to establish truth can present evidence of good faith, such as belief in the truth of the statement, deadline pressures, desire to inform the public, and the use of the word "allegedly". A publisher/broadcaster/journalist/author could have a defence based on good faith if he can prove all of the following:
-the statement is based on a serious investigation,
- the statement concerns a matter of public importance,
-the tone and balance of the statement is measured and objective, and
-there is no trace of personal hostility in the statement.
A defence based on good faith is defeated by the claimant showing that the publisher or broadcaster was malicious, i.e. they wished to injure the claimant or were reckless as to the truth of the allegation.
Jurisdiction
National jurisdiction
In general, French courts will have jurisdiction if there is any publication in France. If the publication is in the UK, for example, as well as in France, and the claimant wishes to sue in France, then the French court will have no choice but to accept the case. However, if the number of publications in France is so low that there was only a slight tort, the French court is likely to reflect this in the remedies it orders (which may be no more than symbolic). If there is no tort at all, the court can strike out the claim as an abuse of process
Criminal and civil jurisdictions The claimant can choose whether to bring his claim before the civil court or the criminal division of the Tribunal de Grande Instance (county court). If the Public Prosecutor brings an action himself, the person named in the article or programme would normally take part in the proceedings. From a procedural standpoint, there is no difference between a civil and criminal defamation action - the criminal procedure applies. In both cases the Public Prosecutor must be notified of the claim before the first hearing, otherwise the claim will be rendered void. In all cases, the Public Prosecutor attends the first pleadings hearing. He makes submissions after the claimant's lawyer but before the defendant's lawyer. The Public Prosecutor will make a recommendation to the court whether to take criminal action or not. He bases his decision on whether or not the claim has a matter of public interest which warrants criminal action. If the case has a racial, political or historical dimension, the Public Prosecutor is likely to bring a criminal prosecution against the defendant. In about 70% of cases, the Public Prosecutor does not recommend criminal action and the matter is dealt with as a civil action. If the court agrees that the criminal prosecution is valid, it can order criminal sanctions. The remedies ordered in a criminal action are more onerous than in a civil action due to the possibility of criminal penalties being ordered against the defendant. If a criminal action is taken, the defendant faces both the payment of an amount to compensate the damage suffered by the claimant, and the payment of a fine to the Treasury. In a typical criminal defamation case, the fine may be about $18,000. In certain cases (such as defamations related to ethnical origin, race, religion, sexual orientation or handicap), the fine can be up to about $54,000 and even, theoretically, include a term of imprisonment of up to one year. Damages awards are dealt with below.
Jurisdiction for minor infringements
The statement may also be interpreted as a private defamation to be brought before the jurisdiction of the Tribunal de Police (Police court), whose jurisdiction is limited to minor offences. This happens if the statement is released in a limited area: for example, an article may have only been sent to a certain category of people, linked by a "community of interest". In such a case, if the action were brought in front of the Tribunal de Grande Instance, whether as a criminal or as a civil action, the action could be declared void for being brought before the wrong court. If this happens, it is usually impossible to bring proceedings again in front of the appropriate jurisdiction, due to the short limitation period of three months.
Procedure Right of reply
Any person named or referred to (he or she has to be identifiable) in a newspaper article or a public document may ask to exercise his or her right of reply, i.e. to have inserted a reply of the same length in the same place and same typeface as the offending article. This right is absolute: it may be exercised even if the article does not contain any inaccuracy or defamatory imputation. Admittedly, this provision may well conflict with the right of criticism, which must legitimately be exercised absolutely freely, especially in artistic and literary matters, provided the criticism does not contain either insults or defamatory allegations.
Interim injunctions
In urgent cases, the claimant can go straight to court to try to prevent a controversial publication/broadcast going ahead. Prebroadcast or pre-publication interim injunctions are very rare in France. However, French courts can
France – DefamationIntroduction to French defamation and privacy law and procedure The privacy jurisdiction France is more claimant-friendly than in England and the U.S. The starting point in a French defamation claim is the right of freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. In contrast to the French law of privacy, the libel jurisdiction is generally more defendant friendly. This is due to the numerous procedural formalities which must be followed by the claimant. For example, there is a limitation period of three months, and a defamation claim must be notified to the Public Prosecutor, failing which it is void.Defamation law Defamation law in France is made up of a combination of statute and case law. According to the Act of 29 July 1881, known in France as "le droit de la presse" ("the press law"), defamation is defined as "any allegation or imputation of an act affecting the honour or reputation of the person or body against whom it is made". As under English and German law, the person or body does not need to be expressly named in order for a claimant to bring a defamation claim; it is enough if the claimant is clearly identifiable. In a libel action, the claimant has to prove: -the publication of a statement to a third party in France, -which refers to the claimant, -and the meaning of which is defamatory. In every case, the claimant must not only precisely identify the words alleged to be defamatory but must also explain exactly why he or she believes the words are defamatory of him or her. Moreover, the words complained of and legal sanctions sought have to be expressly quoted in the writ, otherwise the claim will be void. Unlike in England, there is no set procedure in France for striking out a claim which is not capable of bearing a defamatory meaning, no special differentiation of levels of meaning and no conduct rule.Insults Defamation relates to factual statements or opinions. If, in contrast, the statement complained of is a bare insult (which is not capable of substantiation by a defendant), then the defendant has a much more limited opportunity to defend the claim. According to the Act of 29 July 1881, "insult" is defined as "any offensive expression, term of scorn or invective not involving the imputing of any action". Thus, the defendant will be liable for mere use of any term recognized as insulting unless the defendant can successfully plea that the insult was the result of provocation by the claimant, in which case the author of the insult can be exonerated from liability. If the claimant wrongly categories the claim as a defamation rather than an insult (or vice versa), then his claim will be rendered void.Publication Publication occurs if the allegedly defamatory material is read, heard, accessed or seen in France. Thus, Internet publications will be published in France if someone accesses the website in France. A single instance of publication in France is sufficient to bring an action whether or not a website or hard copy publication is directed at France.Responsibility Everyone involved in the publication or broadcast is potentially liable, e.g. the publisher / broadcaste r/ editor, as well as the author / journalist.Limitation The claim must be lodged at the court within a period of three months starting from the date of first publication or broadcast. Once this period of three months has expired, no legal action can be taken. Like in the U.S., but in contrast to position in England and Germany, there is a single publication rule in relation to Internet publications. The limitation period starts once the publication is made for the first time. Only if the publication is re-released in modified form can the limitation period start again.Defences There are two main defences to a defamation claim: truth and good faith. Unlike in the UK and Germany, there is no separate defence for statements of opinion. The opinion must either be proven to be true or fall within the defence of good faith.Truth Truth is a defence. However, it is not possible to justify an allegation if the facts relied on: -are more than ten years old, - relate to a matter on which there has been a political amnesty, or - relate to a person whose criminal offence has been rehabilitated. The burden of proving the truth of the allegation is on the publisher/broadcaster and the author. Unlike in the UK, the truth is judged by three judges, and not by a jury. As in the UK, publishers and broadcasters must take into account the 'repetition rule' which states that the sentence "X said that Y is a thief" means that "Y is a thief", not that X said it. Therefore it is not enough to prove that another person has previously made the same allegation.Good faith Defendants who are unable to establish truth can present evidence of good faith, such as belief in the truth of the statement, deadline pressures, desire to inform the public, and the use of the word "allegedly". A publisher/broadcaster/journalist/author could have a defence based on good faith if he can prove all of the following: -the statement is based on a serious investigation,- the statement concerns a matter of public importance, -the tone and balance of the statement is measured and objective, and -there is no trace of personal hostility in the statement. A defence based on good faith is defeated by the claimant showing that the publisher or broadcaster was malicious, i.e. they wished to injure the claimant or were reckless as to the truth of the allegation.Jurisdiction National jurisdiction In general, French courts will have jurisdiction if there is any publication in France. If the publication is in the UK, for example, as well as in France, and the claimant wishes to sue in France, then the French court will have no choice but to accept the case. However, if the number of publications in France is so low that there was only a slight tort, the French court is likely to reflect this in the remedies it orders (which may be no more than symbolic). If there is no tort at all, the court can strike out the claim as an abuse of processCriminal and civil jurisdictions The claimant can choose whether to bring his claim before the civil court or the criminal division of the Tribunal de Grande Instance (county court). If the Public Prosecutor brings an action himself, the person named in the article or programme would normally take part in the proceedings. From a procedural standpoint, there is no difference between a civil and criminal defamation action - the criminal procedure applies. In both cases the Public Prosecutor must be notified of the claim before the first hearing, otherwise the claim will be rendered void. In all cases, the Public Prosecutor attends the first pleadings hearing. He makes submissions after the claimant's lawyer but before the defendant's lawyer. The Public Prosecutor will make a recommendation to the court whether to take criminal action or not. He bases his decision on whether or not the claim has a matter of public interest which warrants criminal action. If the case has a racial, political or historical dimension, the Public Prosecutor is likely to bring a criminal prosecution against the defendant. In about 70% of cases, the Public Prosecutor does not recommend criminal action and the matter is dealt with as a civil action. If the court agrees that the criminal prosecution is valid, it can order criminal sanctions. The remedies ordered in a criminal action are more onerous than in a civil action due to the possibility of criminal penalties being ordered against the defendant. If a criminal action is taken, the defendant faces both the payment of an amount to compensate the damage suffered by the claimant, and the payment of a fine to the Treasury. In a typical criminal defamation case, the fine may be about $18,000. In certain cases (such as defamations related to ethnical origin, race, religion, sexual orientation or handicap), the fine can be up to about $54,000 and even, theoretically, include a term of imprisonment of up to one year. Damages awards are dealt with below.Jurisdiction for minor infringements
The statement may also be interpreted as a private defamation to be brought before the jurisdiction of the Tribunal de Police (Police court), whose jurisdiction is limited to minor offences. This happens if the statement is released in a limited area: for example, an article may have only been sent to a certain category of people, linked by a "community of interest". In such a case, if the action were brought in front of the Tribunal de Grande Instance, whether as a criminal or as a civil action, the action could be declared void for being brought before the wrong court. If this happens, it is usually impossible to bring proceedings again in front of the appropriate jurisdiction, due to the short limitation period of three months.
Procedure Right of reply
Any person named or referred to (he or she has to be identifiable) in a newspaper article or a public document may ask to exercise his or her right of reply, i.e. to have inserted a reply of the same length in the same place and same typeface as the offending article. This right is absolute: it may be exercised even if the article does not contain any inaccuracy or defamatory imputation. Admittedly, this provision may well conflict with the right of criticism, which must legitimately be exercised absolutely freely, especially in artistic and literary matters, provided the criticism does not contain either insults or defamatory allegations.
Interim injunctions
In urgent cases, the claimant can go straight to court to try to prevent a controversial publication/broadcast going ahead. Prebroadcast or pre-publication interim injunctions are very rare in France. However, French courts can
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