Avocat à la Cour
Defamation, Privacy and Data Protection
Contributor: Vincent Tolédano (Partner)
Freedom of speech is protected in France since the 1789 Revolution, as strongly proclaimed by the Declaration of Human and Civil Rights.
Jules Ferry (1832-1893), a moderate Republican but an ardent promoter of colonial expansion, who served twice as Prime Minister during the Third Republic, imposed the principle of freedom of the press a century later, in a law dated 29 July 1881.
Overhauled after WW2, the 29 July 1881 law is still referred as the Press Act (loi sur la presse).
Under the 1881 law, defamation, just like the separate head of liability that is the “insult”, is a crime punishable by a fine or even imprisonment if it is aggravated by circumstances characterizing racism or homophobia.
Defamation is defined as “any allegation or imputation of an act which harms the honor or the consideration of the person or body to which the act is imputed”.
If the alleged defamatory content is published by a newspaper, a magazine or a website, proceedings can be issued and served on the individual with responsibility for publication, and the matter can then proceed in a civil court. Service on the publisher at the publisher’s residential address is a mandatory requirement for a civil action to proceed. The plaintiff does not have to appear at the hearing. In Paris, the court usually rules within 12 to 18 months and if necessary, an emergency hearing can be obtained.
If the publisher is unknown or uncertain, the service requirement is not met, and so the matter cannot proceed in a civil court. Instead, a criminal complaint can be filed. A police investigation is then instigated and tasked with identifying the publisher. There is no possibility to seek ancillary evidence regarding the allegation or imputation involved. In Paris, the entire process takes about two years. In such cases, an indictment by the investigative magistrate is almost automatic, regardless of the merits of the complaint. Such criminal complaints can therefore be used as a PR or spin control tool to discredit a book, article or investigative piece by generating publicity associated with the filing of such a criminal complaint. In a sense, that is the French version of a SLAPP suit. Once the indictment is publicised, on occasion the plaintiff quietly withdraws proceedings to avoid the troubles of the actual trial.
To avoid conviction, the defence can offer to prove the truth of the facts or at least, its good faith (bonne foi), by establishing the legitimacy of the goal pursued and the seriousness of the investigation. Under the influence of the European Court of Human Rights, the burden of proof applied by the French Supreme Court (cour de cassation) is that of a “sufficient factual basis”. This allows a rather large spectrum of criticism when dealing with a public figure.
Overall, a conviction is hard to obtain unless the words complained of are obviously false. Where the allegation is proved to have been defamatory, the damages awarded to the complainant (if any) are notoriously limited – typically ranging around a few thousand euros.
Under the French civil code, and pursuant to the rights established in the European Convention on Human Rights, invasion of privacy is a tort, actionable in a civil court. There are two main exceptions to this general rule that a breach of privacy is a civil tort: the fact of wiretapping, and of taking pictures inside a private property are both criminal offences.
The right to one’s image is part of the right to privacy and originates in the case law.
As is the case in relation to defamation proceedings, access to a judge is quick and easy, at an exceptionally low cost. Proceedings are served by a bailiff. The court usually rules within 12 to 18 months and if necessary, an emergency hearing can be obtained. Once again, damages are notoriously limited.
In the court located in Nanterre, just west of Paris, which is the court with jurisdiction to hear such disputes involving most major newspaper and magazine publishers given where they are headquartered, an entire hearing is devoted every Monday morning to invasion of privacy cases. Each case is listed to be heard for 15 minutes, which includes the time allocated to hear lawyers instructed by each party, since proceedings are primarily written. Damages rarely exceed 10,000 euros, and the Court can award an additional 2,000 euros to cover legal costs (although the actual costs charged by lawyers instructed by the parties often largely exceed this sum).
Unlike in the UK, the losing party does not have to cover the actual costs of the proceedings beyond the limited amount ordered by the court. The legal costs incurred by the losing party do add up, though, because most celebrities concerned by the repeated invasion of their privacy tend to act against every publisher, over and over.
A particularity of the French judge is to rule again any photograph featuring what is deemed to be a private moment, even if it occurs in a public space, while shopping, skiing, sunbathing, or swimming, during moments of relaxation and leisure. An injunction preventing the reproduction or republication of the photographs complained can also be granted.
The limitation period is three months for proceedings for defamation and insult, and five years for invasion of privacy. It starts running on the date of the first publication or posting.
In the Paris court (tribunal judiciaire), a chamber (17ème chambre) is entirely dedicated to media law and rules alternatively in both civil and criminal proceedings.
Likewise, a chamber of the Court of appeal (cour d’appel) is entirely dedicated to media law and rules alternatively in both civil and criminal proceedings.
A section of the Public Prosecutor office (Procureur de la République) also specialises in the criminal aspects of media law (so-called press offences).
All cases are heard by a panel of three professional magistrates.
Since 25 May 2018, the GDPR (General Data Protection Regulation), as enacted by the European Union (EU), applies in France.
Contributor: Vincent Tolédano
Avocat au barreau de Paris
23 Rue Saint Sulpice
The material in this Guide is for general information only and does not constitute legal advice. Photograph of Vincent Tolédano © Sacha Goldberger
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