CEDH · CASELAW;CLIN;ENG — 22 octobre 2007

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France [GC] - 21279/02 and 36448/02 Judgment 22.10.2007 [GC] Article 10 Article 10-1 Freedom of expression Author and publisher of a novel convicted for defamation of extreme right-wing party and its president: no violation Newspaper director convicted for defamation after publishing a petition repeating the impugned passages and protesting against the aforementioned convictions:   no violation Article 6 Criminal proceedings Article 6-1 Impartial tribunal Impartiality of a court of appeal when two of the judges who ruled that the reproduction in a newspaper of certain passages from a novel was defamatory had already held the passages to be defamatory in previous proceedings against the author and publisher: no violation Facts : Mr Lindon, a writer, is the author of a work presented as a novel and bearing the title Le Procès de Jean-Marie Le Pen ( Jean-Marie Le Pen on Trial ), referring to the Chairman of the Front National, a political party of the far right. Mr Otchakovsky-Laurens is the publisher. The novel, based on real events but adding fictional elements, recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, committed the cold-blooded murder of a young man of North African descent and has admitted that it was a racist crime. The novel openly raises questions about the responsibility of the Front National and of Mr Le Pen in the growth of racism in France and about the difficulty of combating this scourge. Following proceedings brought by the Front National and Mr Le Pen, Mr Otchakovsky-Laurens was convicted of defamation and Mr Lindon of complicity in that offence. They were each fined and ordered jointly to pay damages and to have notice of the judgment published. The court found four passages from the book to be defamatory, stating that the criminal conduct attributed to the complainants had not been made out and that the author had distorted the facts to reinforce the hostility of his readers towards Mr Le Pen and his party. Just over a month later the daily newspaper Libération published an article in the form of a petition against the convictions, signed by 97 writers. The article reproduced in full the passages that the court had found to be defamatory and challenged that characterisation. Mr July, publication director of Libération , was summoned by the Front National and Mr Le Pen to appear before a court, which found him guilty of defamation and ordered him to pay a fine and damages, not for reporting on the opinions of writers but for reiterating the offence of which Mr Lindon and Mr Otchakovsky-Laurens had been convicted, by reproducing the impugned passages. The Paris Court of Appeal upheld the judgment against Mr Lindon and Mr Otchakovsky-Laurens as to the fine, the damages awarded and the defamatory nature of three passages from the book containing the following remarks about Mr Le Pen: that he is “not the chairman of a political party but the chief of a gang of killers”, comparable to Al Capone; that his words and assertions are full of “racist overtones ... barely concealed at best” and that “behind [them] looms the spectre of the worst abominations of the history of mankind”; and that he is “a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies”. The court found that the author had not sufficiently distanced himself from the views expressed and, without calling into question the political combat or condemning the aversion to the ideas and values of the civil parties, noted that the other factors that might have supported a defence of good faith (allegations made with moderation and after prior verification) were lacking. The Court of Cassation upheld the judgment. In the meantime the Paris Court of Appeal had upheld Mr July’s conviction. As regards the defamatory nature of the article, the Court referred to the reasons given in its judgment against Mr Lindon and Mr Otchakovsky-Laurens, which, it stated, “remain[ed] applicable”. It then dismissed the defence of good faith, in particular because the petitioners’ aim had simply been to express their support for Mathieu Lindon “by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks”. The Court of Cassation dismissed Mr July’s appeal on points of law, and in particular the argument that the Court of Appeal had been biased because the president and one of the other two judges had previously sat in the case concerning Mr Lindon and Mr Otchakovsky-Laurens. Law : Article 10 – The legal basis of the applicants’ convictions lay in the clear and accessible provisions of the Freedom of the Press Act of 29 July 1881 applicable to defamation, which, according to domestic case-law, could be committed through a work of fiction where the person claiming to have been defamed was designated clearly. The case-law was dated and rather scant. Nevertheless, professionals in publishing had a duty to apprise themselves of the relevant legal provisions and case-law, even if that meant consulting specialised lawyers. The interference was thus prescribed by law and also pursued a legitimate aim, that of protecting the reputation or rights of others. The penalty imposed on the author and publisher had not been directed against the arguments expounded in the impugned novel but only against the content of three passages from the work. The criteria applied by the Court of Appeal in assessing whether or not the passages in issue were defamatory had complied with Article 10. To point out that all writings, even novelistic, were capable of resulting in a conviction for defamation, was consistent with Article 10. Admittedly, anyone who, for example, created or distributed a literary work contributed to an exchange of ideas and opinions which was essential for a democratic society, hence the obligation on the State not to encroach unduly on their freedom of expression, especially where, like the novel at issue in the present case, the work constituted political or militant expression. Nonetheless, novelists and those who promoted their work had to assume certain “duties and responsibilities”. The finding of defamation could not be criticised in view of the virulent content of the offending passages and the fact that they specifically named the Front National and its chairman. Moreover, only those remarks that reflected the thoughts of the author had been found to be defamatory and not those from which the author had really distanced himself. The Court of Appeal’s finding that the three offending passages had not been based on basic verification was also consistent with Strasbourg case-law. The distinction between statements of fact, the existence of which could be demonstrated, and value judgments, the truth of which was not susceptible of proof, did not usually need to be made when dealing with extracts from a novel except where, as in the present case, the work mixed fact and fiction and was thus not pure fiction but introduced real characters or facts. It was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a “sufficient factual basis” as they were not merely value judgments but also allegations of fact. In addition, the Court of Appeal had adopted a measured approach, criticising the applicants not for having failed to prove the veracity of the allegations in question but for failure to carry out “basic verification” beforehand. The Court of Appeal’s finding that the content of the impugned writings was not sufficiently “dispassionate” was also compatible with Strasbourg case-law. The Court of Appeal had made a reasonable assessment of the facts in finding that to liken an individual, even a politician who, like Mr Pen, exposed himself to harsh criticism, to the “chief of a gang of killers”, to assert that a murder, even one committed by a fictional character, had been “advocated” by him, and to describe him as a “vampire who thrive[d] on the bitterness of his electorate, but sometimes also on their blood”, “overstep[ped] the permissible limits in such matters”. Those involved in political struggles had to show a minimum degree of moderation and propriety. Wording that expressed the intention of stigmatising an opponent and capable of stirring up violence and hatred went beyond what was tolerable in political debate, even in respect of a figure who occupied an extremist position in the political spectrum. In short, the conviction upheld by the Court of Appeal against the author and publisher had been based on “relevant and sufficient” reasons. The penalties imposed had not been disproportionate. As to Mr July, publication director of Libération , he had been convicted on account of the publication of a petition which had reproduced extracts from the novel containing “particularly serious allegations” and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, had denied that the extracts were defamatory in spite of a ruling to that effect. Having regard to the content of the offending passages of the novel, to the potential impact on the public of the defamatory remarks on account of their publication by a national daily newspaper with a large circulation, and to the fact that it was not necessary to reproduce them in order to report fully on the conviction of the author and publisher and on the ensuing criticism, Mr July had overstepped the permissible limits of “provocation” by reproducing the remarks, also taking into consideration the need to protect the reputation of a named person and the rights of others. In addition, the fine and the damages awarded had been moderate. Conclusion : no violation (thirteen votes to four). Article 6 § 1 – Mr July alleged that the court had lacked impartiality since two of the three judges on the bench which upheld his conviction for defamation on account of the publication of the petition had already ruled, in the case of the first two applicants, on the defamatory nature of the offending passages from the novel which were cited in the petition. However, there was no evidence to suggest that the two judges in question had been influenced by personal prejudice when they heard the case, and as to the composition of the bench of the Paris Court of Appeal, those fears had not been objectively justified for the following reasons. Even though they were connected, the facts in the two cases differed and the “accused” was not the same. It was moreover clear that the judgments delivered in the case of the author and publisher of the novel did not contain any presupposition as to the guilt of Mr July. Whilst in its judgment in Mr July’s case, the Paris Court of Appeal had referred back, in respect of the defamatory nature of the passages in question, to the judgment that it had given in the case of Mr Lindon and Mr Otchakovsky-Laurens, that was because the previous judgment had become res judicata . The question of the good or bad faith of Mr July remained open, however, and had not been prejudiced by the first judgment. The presence of the two criticised judges on a bench which had successively delivered the two judgments in question could not taint the court’s objective impartiality: as regards the characterisation of the text as defamation, any other judge would have been bound by the res judicata principle, which meant that the participation of those two judges had had no influence on the respective part of the second judgment; and as to the issue of good faith, which was a totally different issue in the two cases despite the close connection between them, there was no evidence to suggest that the judges had in any way been bound by their assessment in the first case. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes