What does the law say?

Defamation is governed by the law of July 29, 1881 on press freedom, which penalizes press offenses and applies to all communication media, including the internet.

Defamation is the allegation or imputation of a fact that damages the honor or reputation of a person, even if the allegation is made in a disguised or dubitative form, or if it is insinuated (Article 29 of the law of July 29, 1881). Defamation can also target a group of unnamed but identifiable persons.

The fact in question must be specific enough to be verifiable. If the accusation is not a verifiable fact, the allegation falls under the category of insult.

The difference between defamation and insult:

• An insult is an outrageous expression directed at a person that does not require a specific fact.
• Defamation consists of attributing a fact to a person that damages their honor.

Thus, to characterize defamation, two conditions must be met:

• The imputation of a specific fact to a person or group, which is to be distinguished from what constitutes an opinion;
• This fact must damage the honor or reputation of the person or group targeted.

The intentional element is then presumed from the mere existence of this material element.

Defamation can be racist, sexist, homophobic, or discriminatory against people with disabilities (Decree No. 2017-1230 of August 3, 2017 relating to non-public provocations, defamation, and insults of a racist or discriminatory nature).

Public defamation

Public defamation is that which can be heard or read by an audience unrelated to the author of the facts. This is the case for statements made in the street, in a public speech, published in a newspaper or on a website. Regardless of the medium, it can include drawings, engravings, paintings, emblems, or images.

Statements made on a social network can be considered public defamation if they are disseminated on an account accessible to all.

If the defamation is disseminated in the media, the publication director is considered the primary author (Article 42 of the 1881 law).

If you are a victim of defamation in a daily or periodical newspaper, you have a right of reply.

For public defamation of a non-discriminatory nature, the time limit for legal action is three (3) months. The starting point of the limitation period runs from the day the offense was committed or from the day of the last act of investigation or prosecution if any has been made (L. July 29, 1881, art. 65).

The Public Prosecutor must act against the person in question before the expiration of the limitation period, either by opening an investigation against them or by summoning them to appear before the correctional court. Otherwise, the facts will be time-barred and the complaint will be dismissed.

This limitation period can be interrupted;

• When the limitation period is interrupted, a new three (3) month period begins to run from the interrupting act. The acts that interrupt the 3-month limitation period are:
• Before legal proceedings are initiated: requests for investigation which must, “under penalty of nullity, articulate and qualify the provocations, outrages, defamation, and insults for which the investigation is ordered” (art. 65 para.2).
• Once proceedings have begun, the limitation period is interrupted on the date of certain acts such as the introductory indictment, or “any act that demonstrates the plaintiff’s intention to continue the action constitutes an interrupting act” (Cass. 1st civ., Oct. 10, 2019, No. 18-23.026).

Public defamation is punishable by a fine of €12,000, to which additional penalties may be added, such as community service or citizenship training.

Non-public defamation

Non-public defamation concerns allegations made against the victim in the absence of a third party, particularly through telephone exchanges or electronic messages (SMS), or in front of a restricted circle of people sharing the same interests, regardless of whether the victim is present or not.

However, defamation spoken between two people about another person who is not present, and in a confidential setting, is not punishable by criminal justice.

If the defamation was spread on the internet via an account accessible only to a limited number of people selected by the author of the statements, it is considered non-public defamation.

Non-public defamation is punishable by a first-class fine of €38 (Article R621-1 of the Penal Code).

For non-public defamation of a non-discriminatory nature, the time limit to take legal action is three (3) months. The starting point of the limitation period runs from the day the offense was committed or from the day of the last act of investigation or prosecution if any was made (Law of July 29, 1881, Article 65).

The Public Prosecutor must act against the accused person before the expiration of the limitation period, either by opening an investigation against them or by summoning them to appear before the correctional court. Failing this, the facts will be time-barred and the complaint will be dismissed.

This limitation period can be interrupted in the same ways as for public defamation.

Defamation of a Discriminatory Nature

The law of July 1, 1972, relating to the fight against racism modified the law of July 29, 1881, by introducing press offenses of a discriminatory nature.

The legal regime is not the same if the defamation has racist motives, if it is based on origin, true or supposed belonging to a presumed race or religion.

If the author attributes specific facts to the victim based on one of these motives and it damages the honor of a person or group of people, the offense of defamation is established.

For example, the statement “having kids to collect benefits” is racial defamation against North Africans (CA Aix-en-Provence, 7th ch., March 9, 1998).

Public defamation of a discriminatory nature is punishable by one (1) year in prison and a fine of €45,000 (Articles 32 and 65-3 of the law of July 29, 1881).

Non-public defamation of a discriminatory nature is punishable by a fine of up to €1,500 (Article R625-8 of the Penal Code).

The limitation period is one year (1) from the day the offense was committed. This exception is provided for by Article 65-3 of the law of July 29, 1881, which states:

“For offenses provided for in the seventh and eighth paragraphs of Article 24, Article 24 bis, the second and third paragraphs of Article 32 and the third and fourth paragraphs of Article 33, the limitation period provided for in Article 65 is extended to one year. For these offenses, the second paragraph of Article 65 does not apply“.

Facts That Can Justify Defamation

Two means of defense can be invoked by the author of defamation (Court of Cassation civ.1, March 17, 2011 n°10-11.784):

The Exception of Truth

If the author proves the truthfulness of the stated facts, they can be excused in the name of freedom of expression. However, this must be done under certain conditions: notably, the imputation of the fact must not concern the person’s private life and the proof must be perfect and correlative to the imputed facts (Cass. crim., April 14, 1992, n° 87-80.411; Art. 35 of the law of July 29, 1881).

Good Faith

The exception of good faith allows the defamatory facts to lose their criminal character, but it must meet numerous criteria, including: absence of personal animosity; the contentious statement aims to contribute to a political, historical, intellectual, or scientific debate; prudence and moderation in expression (Cass. crim April 21, 2020, n°19-81172).

The Debate of General Interest

The debate of general interest or “public debate” can also be raised as a means of defense. This evolving concept comes from European jurisprudence and can be interpreted broadly. The European Court has considered:

” Issues of general interest are those that affect the public to such an extent that it can legitimately take an interest in them, that arouse its attention or concern it significantly, particularly because they concern the well-being of citizens or the life of the community. This is also the case for issues that are likely to create strong controversy, that deal with an important social theme or that relate to a problem about which the public would have an interest in being informed » (Couderc and Hachette Filipacchi Associés v. France [GC], 10 Nov. 201540454/07).

What to do if you are the subject of defamation?

• Take screenshots of all the statements; these should indicate the date of the statements.
• Keep the URL link;
• It is possible to have a bailiff’s report made;
• You can have content removed from the internet by making a request to the author of the content, then to the site host. Many hosts have specific reporting mechanisms in place for this purpose.
• In case of urgency and obvious harm, you can ask the judge for an interim injunction to have content removed by the host.
• In case of defamatory statements on the internet, you can report it on Pharos.
• You can file a simple complaint. The person targeted by the complaint must be the author of the defamatory statements. However, if the statements were disseminated in the media, it is the director of publication, as the responsible party, who is considered the main author. The author of the incriminated statements, if different, will be prosecuted as an accomplice.
• You can file a complaint directly with civil party constitution in case of public defamation.
• You can choose the procedure by way of direct summons if the author is identified. The summons must indicate exactly which statements are targeted and which offense they fall under, providing the legal demonstration of the plaintiff’s allegations. The court is able to carry out this work of legal demonstration of the offense in cases of defamation of a discriminatory nature.
• You have the possibility to resort to a right of reply.
• You can call on Equitas who can provide you with legal assistance.

APPLICABLE REFERENCES

Law No. 72-546 of July 1, 1972 relating to the fight against racism; Art. 29, art. 32, 35, 65 and 65-3 of the law of July 29, 1881 on freedom of the press; articles R621-1 and R625-8 of the Penal Code; Decree No. 2017-1230 of August 3, 2017 relating to non-public provocations, defamations and insults of a racist or discriminatory nature

Case law: Cass. civ.1, March 17, 2011, 10-11.784; Cass. crim., April 14, 1992, No. 87-80.411; Cass. crim April 21, 2020, No. 19-81172; Cass. 1st civ., Oct. 10, 2019, No. 18-23.026.