CEDH · CASELAW;CLIN;ENG — 7 novembre 2006

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France - 12697/03 Judgment 7.11.2006 [Section II] Article 10 Article 10-1 Freedom of expression Conviction of a politician for libel of a civil servant: violation   Facts : The applicant, a former journalist and television newsreader, is now a mayor, a member of parliament and a leading member of the ecologist party, “Les Verts”. In October 1999 the applicant took part in an infotainment programme on French television, during which another guest broached the subject of the Chernobyl nuclear accident. The applicant then referred to a Mr Pellerin, the then director of the Central Service for Protection against Ionising Radiation (the “SCPRI”, an organisation which at that time was responsible for monitoring the level of contamination on French territory and alerting its supervising ministries if any problems arose), describing him as a sinister character “who kept on telling us that France was so strong – the Asterix complex – that the Chernobyl cloud had not crossed our borders”. Mr Pellerin brought proceedings in the Paris Criminal Court against the applicant, the national television company “France 2” and its publication director, Marc Tessier, for public defamation of a civil servant, an offence under the Freedom of the Press Act. In 2000 the court found Mr Tessier and the applicant guilty and ordered them to pay a fine and damages to Mr Pellerin. In 2001 the Paris Court of Appeal upheld the conviction. It found that Mr Mamère’s comments were defamatory as they had impugned Mr Pellerin’s “honour and reputation” by accusing him of having on several occasions “knowingly supplied, in his capacity as a specialist on radioactivity issues, erroneous or simply untrue information about such a serious problem as the Chernobyl disaster, which was of potential consequence for the health of the French population”. In 2002 the Court of Cassation dismissed an appeal on points of law by the applicant, Mr Tessier and “France 2”, considering that the Court of Appeal had rightly refused to accept that the applicants had acted in good faith. Law : The applicant’s conviction for complicity in public defamation of a civil servant had constituted an interference with his right to freedom of expression that had been prescribed by law and had pursued the legitimate aim of the protection of the reputation of others. The case was one in which Article 10 required a high level of protection of the right to freedom of expression: firstly, the applicant’s comments had concerned topics of general concern, namely protection of the environment and public health, and secondly, he had undoubtedly been speaking in his capacity as an elected representative committed to ecological issues, such that his comments were to be regarded as political or “militant” expression. The authorities’ margin of appreciation in deciding on the necessity of the impugned measure had thus been particularly limited. In addition, the Court reiterated that anyone who was prosecuted on account of comments on a matter of general concern should have the opportunity to absolve themselves of liability by showing that they had acted in good faith and, in the case of factual allegations, by proving the veracity of the comments. In the present case the offending comments had consisted both of value judgments and of factual allegations, so the applicant should have been afforded both of those opportunities. As regards the factual allegations, since the acts criticised by the applicant had occurred more than ten years earlier, the 1881 Act barred him from proving that his comments were true. Although, in general, the Court could see the logic of such a time bar, it considered that where historical or scientific events were concerned it might, on the contrary, be expected that over the course of time the debate would be enriched by new information that could improve people’s understanding of reality. This was clearly the case, in any event, when it came to the effects of the Chernobyl accident on the environment and public health and to the manner in which the authorities in general and the SCPRI in particular had handled the crisis. Furthermore, the Court was not persuaded by the Court of Appeal’s reasons for finding that the applicant had lacked good faith, since they had been based entirely on the immoderate nature of his comments. According to the Court’s case-law, by contrast, those taking part in a public debate on a matter of general concern were entitled to make somewhat immoderate statements. In the present case, the applicant’s comments had admittedly been sarcastic but had remained within the limits of acceptable exaggeration or provocation and the Court did not regard them as manifestly insulting, especially as the offending statements had to be placed in the context of an exchange of views during a television programme that was concerned more with entertainment than with news. Lastly, the Court also considered the fact that the person criticised was a public official. However, at the time when the applicant had made the comments found to be defamatory, the SCPRI no longer existed and Mr Pellerin, then aged 76, was no longer in active employment. Furthermore, the question of Mr Pellerin’s personal and “institutional” liability was an integral part of the debate on a matter of general concern, since as director of the SCPRI he had had access to the measurements being taken and had on several occasions made use of the media to inform the public of the level of contamination, or rather, might one say, the lack of it, on French soil. Criticism of Mr Pellerin in his capacity as former director of the SCPRI could not legitimately justify particular severity in the handling of the applicant’s case. In those circumstances, and having regard to the considerable importance of the public debate in which the offending comments had been uttered, Mr Mamère’s conviction of defamation could not be regarded as proportionate and hence as “necessary in a democratic society”. Conclusion : violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. 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