ECHR Ruling on Public Defamation and Freedom of Expression

Extract

[...] The internal appeal procedures having been exhausted, the applicant therefore turned to the European Court of Human Rights. The disproportionate nature of the interference suffered by the applicant It was up to the European Court to assess the proportionality of the interference suffered by the applicant, following the criteria for legitimacy set out in Article 10 § 2 of the Convention (legality, legitimate purpose, proportionality). As a preliminary matter, the legality of the interference did not pose a problem. In its judgment, the Court clarifies that it does not intend to question the way in which the internal courts have applied French law (§ 43). [...]

[...] In fact, the European Court of Human Rights requires States to provide appropriate protection to individuals reporting sexual harassment of which they claim to be victims. Therefore, it would follow from this judgment a general principle of protection against sexual harassment. In addition, the Court requires that victims of sexual offenses be able to freely address the judge in order to report the facts of harassment. This liberalization can only be effective if the rule of law does not make the victim fear that her act of speech will be reproached. [...]

[...] The judges of cassation require a thorough proof of the reality of the facts, whereas the characterization of the factual basis should be less rigorous than that. It should be based only on the criteria mentioned above to establish the probability of the facts and not on their veracity. In addition, the conditions in which sexual aggressions occur should lead the judge to show flexibility in characterizing the sufficient factual basis. There are factors that can prevent the victim from filing a complaint (professional, family pressure, etc.). Using these pressures to constitute bad faith would not be an appropriate legal solution. [...]

[...] As it was a matter of people completely foreign to the association and there was no community of interests between all the recipients, the defamation necessarily had a public character. On the other hand, French courts have considered that the applicant could not benefit from the excuse of good faith for what concerned the allegation of sexual aggression. For the record, the excuse of good faith is admitted by the jurisprudence and allows the person being pursued to be exempt from their responsibility by the combination of four elements: the legitimacy of the pursued goal, the absence of personal animosity, prudence and measure in expression, the existence of a serious investigation. [...]

[...] The applicant argues that she had sent her email to people linked by a community of interest and estimated that she should benefit from the excuse of good faith. Or, in a judgment of 16 January 2018, the Paris Correctional Court convicted the applicant and her husband on the grounds that the presence of an external recipient to the community made the statement public. On 21 November 2018, the Paris Court of Appeal confirmed the judgment on the merits. Finally, by decision of 26 November 2019, the Court of Cassation rejected the applicant's appeal. [...]