Press offences

The question of freedom of expression and of the offences that sanction its abuses (insult, defamation, incitement to hatred, discrimination and violence) gives rise to significant case law, built piece by piece, as the field is heavily shaped by the facts of each case and does not lend itself to precise rules beyond the major governing principles.

The specific regime of the 1881 Act

Insult gave rise to the only Plenary Assembly judgment of this period (Ass. plén., 25 October 2019, appeal no. 17-86605). The facts, which took place during the 2012 presidential campaign, concerned the broadcasting, on the television programme "On n'est pas couché", of a sequence showing posters published by the newspaper Charlie Hebdo, one of which represented a smoking pile of excrement above the caption "C..., the candidate who looks like you".

Following a complaint with civil-party joinder filed by the candidate concerned, who had been interviewed on the programme before that sequence, the host was referred to the criminal court for complicity in public insult against a private individual and acquitted.

On the candidate's appeal, the Plenary Assembly recalled that "freedom of expression constitutes one of the essential foundations of a democratic society", that "it can only be subject to interferences in the cases where these constitute measures necessary under Article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms", and that, accordingly, "the restriction that Articles 29(2) and 33 of the Law of 29 July 1881 (which provide for and punish insult) place on freedom of expression may be justified if it pursues one of the aims listed in Article 10(2) of the Convention", among which "is the protection of reputation", an integral part of private life within the meaning of Article 8 of the European Convention.

Between these two rights of equal normative value, the judge must seek a balance through a proportionality test in order to determine "whether the disputed publication (...) constitutes an abuse of the right to freedom of expression".

Short limitation period and formalism of prosecution

After this lengthy recall of a now-classic reasoning, the Plenary Assembly verified and upheld the Court of Appeal's reasoning: "the poster, published in a newspaper claiming the right to humour and satire, contains an appreciation of Ms C...'s political positioning on the occasion of the presidential election and was shown by Mr I... alongside other posters parodying each of the candidates, in a sequence of a polemic programme akin to a press review, with express mention that those posters come from a satirical newspaper and are themselves polemical in nature"; "the Court of Appeal, which correctly assessed the meaning and scope of the poster in light of the extrinsic elements it sovereignly analysed, rightly inferred that the disputed publication did not exceed the admissible limits of freedom of expression". The appeal was therefore dismissed.

Recent input from the Criminal Chamber

Defamation and incitement to hatred, discrimination and violence gave rise to an interesting decision of the Criminal Chamber (Crim., 15 October 2019, appeal no. 18-85366). The author of a book entitled "The billions of Israel", subtitled "Jewish swindlers and international financiers", with a green cover evoking a US dollar bill and showing the portrait of a dark-haired man in a suit smoking a cigar and holding in his curled left hand a bag stamped with the dollar symbol, while extending his right hand above a banner inscribed "how to take money from the pockets of goys", was prosecuted for both offences.

The defendant, convicted, appealed to the Court of Cassation. He first contested the cumulative qualification, an argument the Court swept aside, holding that the two offences protect distinct interests ("the honour and reputation of a person" for defamation, "a social value and civil peace" for incitement) and contain no constitutive elements incompatible with each other. He then alleged a violation of Article 10 of the European Convention and of the 1881 Act provisions applicable to defamation. The Court held that the offending wording ("Jewish swindlers") on the cover of a book supposed to illustrate it "contained the imputation of facts contrary to honour or reputation, sufficiently precise, targeting a group of persons by reason of their sole belonging to a determined religion, and exceeded the admissible limits of freedom of expression".