Abstract
While libel tourists have flocked to London, in France levels of libel damages are very low, says lawyer
Under French law that doesn’t mean people should be allowed to libel him. A recent publication called Faurisson a “falsifier” and a “counterfeiter of history” – statements that in English law would be considered defamatory, though they would be defensible in court. Yet on 16 January, the Paris district court simply dismissed his action for libel. Why? Because in his lawsuit, Faurisson did not argue that these statements were defamatory but that they were insulting.
Unlike English law, French law distinguishes two different types of libel: defamation proper, the imputation or allegation of a fact that damages the reputation of a person or an institution; and insults, which do not contain the imputation or allegation of a fact. Claimants must choose the legal ground on which they act. If he or she mischaracterises a claim, it will be dismissed. The reason for this? The possibility of proving truth. A defamatory statement can be proven true; an insulting statement cannot be proven because it doesn’t contain the imputation or allegation of a fact. Saying someone is “a dirty pig” is an insult. It can’t be proven true. Saying someone “harasses employees in the work place” is defamation. It can be proven.
The UK’s 2013 Defamation Act includes a new defence of truth, which requires the defendant to prove the “essential truth of the sting of the libel”. French courts, however, will accept a defamation defence based on a claim of truth only if the proof submitted by the defendant is considered full, complete and entirely correlated to all the material elements of a defamatory statement. The evidence must, moreover, be contemporaneous to publication. The test of truth is, therefore, more rigorous in France than in England.
But, although in France truth, like the English common law defence of justification (replaced with the defence of truth in the 2013 Defamation Act), is a general defence to an action for defamation, it is not admissible as a defence if the facts concern a person’s privacy.
And this is probably one of the most distinguishing features of French law compared with English. France has laws that protect privacy that go beyond the provisions of Article 8 of the European Convention on Human Rights. If London has been called “the libel capital of the world” because of its “notoriously claimant-friendly environment in which to sue” – the words of the lawyer Mark Stephens – it could be said that Paris is the privacy capital of the world. French privacy law is notably protective of the rights of individuals, including their rights to their own image, which prevents the publication of unauthorised photographs. This is why, for example, newspapers blur the faces of bystanders in photographs.
Above: French privacy laws protect individuals’ rights to their own image, so photos are often blurred to mask the faces of bystanders
Credit: Ian Pilbeam/Alamy
Other notable differences between the French and English defamation laws are the result of the differences in legal cultures and practices. In his 1872 Notes on England, the French critic Hippolyte Taine describes a typical English trial in which the barristers examine and cross-examine witnesses: “The whole burden of the case falls upon the barristers and the judge is there to check and control them, prohibit certain questions, and act as moderator to the two champions.” By contrast, he says, French lawyers are “mere phrase-spinners”. His description remains, 142 years later, strikingly accurate. The French and English legal systems are radically different, and the format of trials reflects this. France has a legal system based on written law, and the law of libel is entirely contained in a single statute: the law of 29 July 1881 “on the freedom of the press”. Defamation cases are heard by a judge, not by a jury. There is no right to a trial by jury, and the judge does not have the discretion to order one.
It could be said that Paris is the privacy capital of the world
Contesting a libel case in the French courts is typically much less expensive than in England – and the damages awarded by French courts for libel are generally low. It is rare that a claimant gets more than €10,000, and symbolic awards for €1 are commonplace.
Partly because of the relatively low level of damages awarded, France has never been confronted with the controversies that led to the recent amendments to English defamation law. In the 2013 Defamation Act, the UK Parliament imposed a “serious harm” test: individuals have to show serious harm to their reputation, companies have to show serious financial harm. The rationale behind this is that it is necessary to deter rich corporate bodies and individuals from using the threat of an expensive libel case over a minor detail as a means of gagging the media. In France, the threat of a libel action is simply not an issue. It has no chilling effect. This is one reason why investigative reporting has thrived in France. Political scandals are routinely reported, even when their newsworthiness is debatable.
Contesting a libel case in French courts is typically less expensive than in England –and the damages awarded by French courts are generally low
Although French libel law is, in practice, more lenient than in England, it is predominantly a matter of criminal law and defamation is a criminal offence. (The offence of criminal libel was effectively abolished in the UK in 2009 after years of disuse.) Publishing a libel is punished, when the plaintiff is a private person, by a maximum fine of €12,000. But in some cases, libel can be punished by imprisonment, up to one year, and a maximum fine of €45,000 – notably when the defamatory statement concerns the racial origin, colour or sexual orientation of a person or group of persons.
Like England, France allows defences based on truth (excuse de vérité) and privilege (immunité). Qualified privilege defences are, however, considered in French law as an element in a broader “good faith defence”. There is a presumption in French law that all defamatory statements are made with the intention to cause harm to the claimant and that all defamatory statements are made in “bad faith”. The defendant is, however, entitled to prove that he or she did not act in bad faith. The success of the defence rests on four cumulative criteria: the objectivity of the presentation; the prudence in the expression (both of which include, for journalists, a careful verification of the sources); the absence of personal animosity towards the plaintiff; and the legitimacy of the goal pursued by the defendant (which includes public interest and artistic, literary, scientific or historical critique). The droit de critique in literary, artistic and scientific matters is a subset of the general “good faith” defence. Something very similar has been included as a specific defence in English law by the 2013 Defamation Act, which has created a new qualified privilege relating to peer-reviewed material in scientific or academic journals.
The French and English legal systems differ substantially. But this is a consequence of their cultures and histories. The common adherence of France and the UK to the Council of Europe and the application of the Convention on European Human Rights in both jurisdictions should, over time, erase the notable differences between the legal cultures. The way the European Court of Human Rights enforces privacy protection through Article 8 of the Convention has increased the protection of this right in Britain. The enforcement by the European Court of Human Rights of the protection of journalistic sources has made France uphold the rights of journalists not to disclose their sources to the police.
As time passes, the rights enshrined in the Convention on European Human Rights should lead most European countries to a common, if not unique, approach to the protection of free speech and individual privacy, and redress for individuals whose reputation has been injured by the defamatory statements of others.