Public expression

Damages for invasion of privacy in the context of sexual assault, the lawyer specialised in media and internet law in Paris answers you

by Cabinet Roquefeuil | Mar 10, 2023

What does the law say about invasion of privacy and sexual assault?

Article 39 quinquies of the French Freedom of the Press Act of 1881 provides for a special procedure for persons who believe they have been the victims of revelations in a newspaper or other medium.

Under this article, the person can ask the judge to order the author of the article to pay a fine and damages (civil action adjoining the public action) without having to prove the damage suffered. The amount of damages is determined by the judge according to the circumstances of the case.

It should be noted that this procedure is only available for acts committed through the press, and not for other types of disclosure such as verbal disclosure.

The press procedure is a special and criminal procedure governed by the short statute of limitations of three months.

Under press law, legal persons cannot be held criminally liable, but they can be sued for damages (civil liability) incurred by their employees.

Article 9 of the Civil Code on the protection of privacy allows for a civil liability claim for damages (five-year limitation period).

Other criminal or civil qualifications can be sought: articles 226-1 and following of the penal code;

In criminal matters (excluding press law), companies can be held liable, and the fine incurred is 5 times that incurred for natural persons.

Criminal or civil proceedings?

Criminal prosecution (public action) allows the police to be called in to identify the perpetrators; the public action escapes the prosecuting party, except in the case of the press, where a transaction allows the action to be extinguished.

Civil proceedings are aimed at obtaining damages and can be conducted independently of public proceedings, except for certain offences.

Short circuit or long circuit?

The short circuit is preferred in cases where speed is required. The "accelerated procedure on the merits" allows action to be taken on internet content.

Privacy" or "press" basis?

The press procedure is entrapment, subject to a short statute of limitations, and is necessary for press offences.

Invasion of privacy is not a 'press offence' but the opponent will tend to show otherwise.

The Press Act (39 quinquies of the amended 1881 Act, cited below) provides for a fine of EUR 15,000 against a weak individual.

Article 39 quinquies Version in force since 01 January 2002

Modified by Ordinance n°2000-916 of 19 September 2000 - art. 3 (V) JORF 22 September 2000 in force on 1 January 2002

Disseminating, by any means and through any medium, information concerning the identity of a victim of sexual assault or abuse or the image of such a victim when identifiable is punishable by a fine of

The provisions of this Article shall not apply where the victim has given written consent.

These provisions are mainly justified by taking into account the interests of the victim. Therefore, publications mentioning the identity of the latter are authorised subject to written agreement (L. 29 July 1881, Art. 39 quinquies, para. 2, same text).

. - Articulation between Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code

It follows from the combination of Article 39 quinquies of the Law of 29 July 1881 and Article 9 of the Civil Code that, while the dissemination of the identity of a person and the sexual nature of the crimes or offences of which he or she was a victim is prosecuted on the basis of Article 39 quinquies of the Law of 29 July 1881, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a separate act constituting an invasion of his or her privacy, the disclosure, without the consent of the person concerned, of information relating to the precise circumstances in which these offences were committed is a distinct fact constituting an infringement of his or her privacy, which may be punished on the basis of Article 9 of the Civil Code (Cass. 1st Civ, 9 September 2020, n° 19-16.415: JurisData n° 2020- 012860).

Is compensation possible?

In general, damages for attempted invasion of privacy and for the identification of victims of sexual harassment will vary according to the particular circumstances of each case. However, some general principles that may apply are

Attempted invasion of privacy: If someone attempts to invade another person's privacy, but is unsuccessful, the victim may still be entitled to damages. These damages may include compensation for emotional distress and mental anguish, as well as any other harm caused by the attempt. The exact amount of damages will depend on the seriousness of the attempted invasion of privacy and the harm suffered by the victim.

Identification of victims of sexual harassment: If someone reveals the identity of a victim of sexual harassment, the victim may be entitled to damages. These damages may include compensation for emotional distress, mental anguish and any harm caused by the disclosure of their identity, such as damage to their reputation or loss of earnings. The exact amount of damages will depend on the severity of the harm caused by the disclosure and the particular circumstances of the case.

It is important to note that damages for attempted invasion of privacy or identification of victims of sexual harassment may vary depending on the jurisdiction and laws applicable to the case.

It is advisable to consult a lawyer specialising in press, media and internet law in Paris to determine your legal rights and options. Roquefeuil Avocats will assist you.

See as well :

Right to be forgotten, privacy, Roquefeuil Avocats can help you

Contact

Defamation, insult, contempt, denunciation, false testimony: be assisted by a lawyer in criminal communication law in Paris

by Cabinet Roquefeuil | Feb 16, 2023

Texts and sanctions, prescriptions, means of defence:

Defamation and insult are so-called “press” offenses subject to a special and tricky procedure intended to preserve freedom of expression and to discourage those who want to have harmful content removed or sanctioned.

For example, the limitation period for initiating proceedings is in principle three months, beyond which the action is prescribed.

It is the law of July 29, 1881 on the freedom of the press which provides for and punishes these offences.

Section 29

Amended by Ordinance of May 6, 1944 – art. 4

Any allegation or imputation of a fact which undermines the honor or consideration of the person or body to which the fact is imputed is defamation. The direct publication or by way of reproduction of this allegation or this imputation is punishable, even if it is made in doubtful form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms speeches, cries, threats, writings or printed matter, placards or posters incriminated.

Any outrageous expression, terms of contempt or invective which does not contain the imputation of any fact is an insult.

Section 32

Amended by LAW n°2019-222 of March 23, 2019 – art. 71 (V)

Defamation committed against individuals by one of the means set out in article 23 will be punished by a fine of 12,000 euros.

Defamation committed by the same means against a person or a group of persons on the basis of their origin or their membership or their non-membership of an ethnic group, nation, race or religion determined will be punished by one year. imprisonment and a fine of 45,000 euros or only one of these two penalties.

Defamation committed by the same means against a person or a group of persons on the basis of their sex, their sexual orientation or gender identity or their disability will be punished with the penalties provided for in the preceding paragraph.

In the event of conviction for one of the facts provided for in the two preceding paragraphs, the court may also order:

1° The posting or dissemination of the decision pronounced under the conditions provided for by Rule 131-35 the penal code;

Defamation: how is it punished? how to defend yourself?

The defenses are:

the truth of the facts
good faith
the non-defamatory fact, not detrimental to honor and consideration
the absence of specific facts, the expression of an opinion or an insult

When the facts reveal discrimination, police custody and immediate appearance are incurred (induced by the one-year prison sentence). CRPC is excluded.

Pre-trial detention is not envisaged, in principle. (the warrant must be strictly necessary for the investigation and proportionate to the seriousness of the offense (CA Paris, 4th ch. int., May 15, 2009 no. 2008/06790 : Com. com. electr. 2010, chrono. 3, No. 12, obs. C. Bigot).

The summary procedure can be used to alleviate the urgency, as well as the accelerated procedure on the merits provided for by article 6.I.8 paragraph 1 of law n° 2004-575 of June 21, 2004 on confidence in the digital economy.

The right of reply and the sanction of the refusal of the right of reply make it possible to accelerate the possibilities of dispute.

The judgments often state in the preamble of their motivation and in a synthetic way:

– article 29 paragraph 1 of the law of July 29, 1881 defines defamation
such as the direct publication or by way of reproduction of “any
allegation or imputation of a fact which undermines the honor or
consideration of the person or body to which the act is attributed”;
– the person or body to which the act is attributed must be
expressly named or failing that, their identification must be made
possible by the terms used or their intrinsic circumstances or
extrinsic;
– it must be a specific fact, likely to be the subject of debate
contradictory on the proof of its truth, which thus distinguishes the
defamation, on the one hand, insult - characterized, according to the second
paragraph of article 29, by “any offensive expression, terms of
contempt or invective which does not contain the imputation of any fact ”- and,
on the other hand, from the subjective expression of an opinion or judgment
of value, the relevance of which can be freely discussed within the framework
of a debate of ideas but whose truth cannot be proven;
– the honor and consideration of the person should not
to appreciate according to the personal and subjective conceptions of this one,
but according to objective criteria and the general reprobation
caused by the disputed allegation, that the imputed fact is criminally
reprehensible or manifestly contrary to the rules of morality
commonly accepted;
– defamation, which may be in the form of allusion or
of insinuation, must be assessed taking into account the elements
intrinsic and extrinsic to the medium in question, namely both the
the very content of the remarks and of the context in which they take place;
– these provisions apply in civil matters, including before the
President of the Court.

The insult:

Section 33

Amended by LAW n°2021-1109 of August 24, 2021 – art. 38

Insult committed by the same means against the bodies or persons designated by articles 30 and 31 of this law will be punished by a fine of 12,000 euros.

The insult committed in the same way towards individuals, when it has not been preceded by provocations, will be punished by a fine of 12,000 euros.

Shall be punished by one year's imprisonment and a fine of 45,000 euros for insults committed by the same means against a person or a group of persons on the basis of their origin or their membership or non-membership of a ethnicity, nation, race or religion.

Insults committed under the same conditions against a person or a group of persons on the basis of their sex, their sexual orientation or gender identity or their disability will be punished with the penalties provided for in the preceding paragraph.

When the acts mentioned in the third and fourth paragraphs of this article are committed by a person vested with public authority or charged with a public service mission in the exercise or on the occasion of the exercise of his functions or his mission, the penalties are increased to three years' imprisonment and a fine of 75,000 euros.

In the event of conviction for one of the acts provided for in the third and fourth paragraphs, the court may also order:

1° The posting or dissemination of the decision pronounced under the conditions provided for by Article 131-35 of the Criminal Code;

2° (Repealed).

Many special regimes exist (offences involving acts against the authorities, or racial or sexist discrimination, etc.)

Defamation and insults can be prosecuted within the framework of criminal and civil proceedings, referral to an examining magistrate allows in principle a more active search for anonymous perpetrators.

The withdrawal stops the prosecution (art.49).

Our article: Online insult: check the definition

Defamation and non-public insults are less severely sanctioned.

Article R621-1

Non-public defamation of a person is punishable by the fine provided for 1st class offenses (38 euros).

The truth of defamatory facts can be established in accordance with the legislative provisions relating to the freedom of the press.

Article R621-2

Non-public insult towards a person, when it has not been preceded by provocation, is punished by the fine provided for 1st class fines (38 euros).

The Roquefeuil firm specializing in media and digital technology supports you in legal proceedings or in defense on these issues of defamation and insult – make an appointment.

Communication or verbal or written expression in general nevertheless gives rise to other forms of offenses which do not come under the press regime and are covered by civil law or criminal law, or commercial case law. Thus, commercial disparagement is sanctioned civilly, in the field of unfair competition, and makes it possible to prosecute acts aimed at discrediting the competitor with a view to undermining his commercial activity.

Our article: The negative opinion: the Roquefeuil firm responds

Contempt: how is it sanctioned? how to defend yourself?

Contempt is provided for and punished by the penal code:

Section 433-5

Amended by LAW n°2021-1520 of November 25, 2021 – art. 55

Words, gestures or threats, writings or images of any kind not made public or the sending of any objects whatsoever addressed to a person charged with a public service mission, in exercise or on the occasion of the exercise of its mission, and likely to affect its dignity or the respect due to the function with which it is invested.

When it is addressed to a person holding public authority, to a firefighter or to a marine-firefighter in the exercise or on the occasion of the exercise of his missions, the contempt is punished by one year's imprisonment and a fine of 15,000 euros.

When it is addressed to a person in charge of a public service mission and that the acts were committed inside a school or educational establishment, or, on the occasion of the entrances or exits of the pupils, in the surroundings of such an establishment, contempt is punishable by six months' imprisonment and a fine of 7,500 euros.

When committed in a meeting, the contempt provided for in the first paragraph is punishable by six months' imprisonment and a fine of 7,500 euros, and the contempt provided for in the second paragraph is punished by two years' imprisonment and 30,000 euro fine.

Section 433-5-1

Creation Law n°2003-239 of March 18, 2003 – art. 113 () JORF March 19, 2003

The act, during a demonstration organized or regulated by the public authorities, of publicly insulting the national anthem or the tricolor flag is punished by a fine of 7,500 euros.

When committed in a meeting, this outrage is punishable by six months' imprisonment and a fine of 7,500 euros.

The threshold of 6 months imprisonment triggers the possibility of custody and immediate appearance.

The outrage is directed against authority, and is not committed by way of public diffusion.

The Constitutional Council (Cons. const. 9 Apr. 2021, n° 2021-896 QPC) notes that "the same statement made publicly against a person entrusted with a public service mission or depositary of the public authority may constitute a public contempt or insult”. However, it notes that, if it is a question of an attack on the dignity of the functions in the two cases, this attack is different since the contempt must, to be punishable, according to the constant case law of the Court of Cassation, be addressed directly to the offended person or proceed from a desire that the remarks be reported to him by a person present. In other words, contempt is only punishable if it affects the holder of the office. Conversely, public insult does not have to be addressed directly to the person concerned or intended to be reported to him. The two acts being of a different nature, the principle of equality before the law is preserved.

Contempt presupposes a direct relationship, a form of verbal, almost physical aggression. The public insult is addressed in the first place to an audience which is not the person insulted.

it is also necessary to compare the following offences, which appear from the same register:

Slanderous denunciation: how is it sanctioned? how to defend yourself?

According to article 226-10 of the penal code:

“Rule 226-10 version in force since December 11, 2016, Amended by Decision no. 2016-741 DC of December 8, 2016 – art. 4, c. initiate.

The denunciation, made by any means and directed against a specific person, of a fact which is likely to entail legal sanctions, administrative or disciplinary and that we know to be totally or partially inaccurate, when it is addressed either to a judicial or administrative or judicial police officer, either to an authority with the power to act on it or to seize the competent authority, either to the hierarchical superiors or to the employer of the denounced person is punished by five years' imprisonment and a fine of 45,000 euros.

The falsity of the fact denounced necessarily results from the decision, which has become final, of acquittal, acquittal or dismissal, declaring that the fact was not committed or that it is not attributable to the person denounced. .

In any other case, the court hearing the proceedings against the whistleblower shall assess the relevance of the charges brought by him.”

False testimony:

It involves a statement made in court:

Article 434-13 of the penal code:

Version in force since January 1, 2002 Modified by Order no. 2000-916 of September 19, 2000 – art. 3 (V) JORF September 22, 2000 in force on January 1, 2002

False testimony given under oath before any court or before a judicial police officer acting in execution of a letter rogatory is punishable by five years' imprisonment and a fine of 75,000 euros.

However, the false witness is exempt from penalty if he has spontaneously retracted his testimony before the decision putting an end to the procedure rendered by the investigating court or by the trial court.

The fake news:

These are false news, in French law they are sanctioned when they aim to distort electoral campaigns.

" Art. L. 163-2.-I (electoral code).-During the three months preceding the first day of the month of general elections and until the date of the ballot in which they are acquired, when allegations or imputations inaccurate or misleading of a fact likely to alter the sincerity of the upcoming ballot are disseminated in a deliberate, artificial or automated and massive manner through an online public communication service, the judge in summary proceedings may, at the request of the public prosecutor, of any candidate, of any political party or group or of any person having an interest in acting, and without prejudice to compensation for the damage suffered, prescribe to the natural or legal persons mentioned in 2 of I of article 6 of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy or, failing that, to any person mentioned in 1 of the same I all proportionate and necessary measures to put an end to this dissemination.
“II.-The judge in chambers shall rule within forty-eight hours of the referral.
“In the event of an appeal, the court rules within forty-eight hours of the referral.
“III.-Actions based on this article are exclusively brought before a tribunal de grande instance and a court of appeal determined by decree. »

ARCOM, the telecom regulator, ensures that foreign states do not alter the sincerity of the ballot.

LAW n° 2018-1202 of December 22, 2018 relating to the fight against the manipulation of information thus modifies the electoral code, THE LAW OF SEPTEMBER 30, 1986 RELATING TO FREEDOM OF COMMUNICATION (Articles 5 to 10),

Platforms have obligations of transparency and cooperation, and must set up reporting procedures to combat fake news.

European regulations (DSA–DMA) reinforce the obligations of platforms in terms of transparency on the origin of advertisements, which in principle makes it possible to identify those for political purposes, and platforms can choose to hide certain content during an election period, or set up de facto cells checking to alert the reader.

Are you the victim of an insult, defamation, contempt, false testimony, and you want to know how you can defend yourself? Pierre de Roquefeuil, a lawyer specializing in communication law in Paris, supports you to advise you and to ensure that your interests are respected.

The lawyer specializing in communication law advises you and helps you identify the exact fault committed by the author of the comments online. Get in touch with Pierre de Roquefeuil, a lawyer specializing in communication law in Paris.

Right to be forgotten, to be delisted from search engines

online hate

Responsibilities of internet and media actors

What to do in case of defamation?

by Cabinet Roquefeuil | Jan 4, 2023

First check that we are in the presence of a case of defamation:

Defamation is saying or writing something negative about a person, company or group of people that may cause them harm. Defamation can be verbal or written, and can be done publicly or privately. It can take the form of slander, which consists in defaming knowing that what one says is false, or defamation, which consists in defaming believing that what one says is true but without verifying the information. Defamation is punishable by law in many countries, including France.

In France, how is defamation punished?

In France, defamation is punished by heavy fines by the law of July 29, 1881.

According to article 29 of this law:

Any allegation or imputation of a fact which undermines the honor or consideration of the person or body to which the fact is imputed is defamation. The direct publication or by way of reproduction of this allegation or this imputation is punishable, even if it is made in doubtful form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms speeches, cries, threats, writings or printed matter, placards or posters incriminated.

Any outrageous expression, terms of contempt or invective which does not contain the imputation of any fact is an insult.

However, there are limits to this prohibition. For example, defamation cannot be prosecuted if the defamatory statements were published for the purpose of defending freedom of expression or reasonably criticizing a person or company. Similarly, defamation cannot be prosecuted if the defamatory statements are based on proven facts and if the person who published them acted in good faith.

In the event of a conviction for defamation, the convicted person may be required to publish a corrigendum and pay damages to the defamed person.

In the United States, how is defamation punished?

In the United States, defamation is punished similarly to what is provided for in France. It is considered a form of private defamation or public defamation depending on who is the target of the defamatory remarks.

Private libel is generally considered less serious than public libel and usually involves defamatory remarks about a private person, rather than a public person. Public defamation, on the other hand, generally concerns defamatory remarks against public figures, such as celebrities or politicians.

In both cases, defamation can be sued and result in damages for the defamed person. However, in the United States, libel law is influenced by the First Amendment to the Constitution, which guarantees freedom of speech. As a result, it is often more difficult to sue for defamation in the United States than in France or other countries.

In the UK, how is defamation punished?

In the United Kingdom, defamation is punishable by the Defamation Act of 2013. According to this law, defamation is the fact of publishing a "writing, word, picture or other sign which imputes to another person a serious fault, infirmity, ignominy or other dishonorable quality”.

The law also provides a number of defenses against defamation, including the defense of truth (if the defamatory statements are true), the defense of public liability (if the defamatory statements were published in the public interest) and the defense of “private publication” (if the defamatory statements were published to a small number of people).

In the event of a conviction for defamation, the convicted person may be required to publish a corrigendum and pay damages to the defamed person. The law also provides criminal penalties for defamation, but these are generally not enforced in defamation cases.

In Spain, how is defamation punished?

In Spain, defamation is punishable by the Penal Code and by the press law. According to article 208 of the Spanish Penal Code, defamation consists in "saying or publishing slanderous or defamatory remarks against a person, a group of people, a company or an institution, in such a way as to undermine their honor or their consideration”.

Defamation can be prosecuted and result in damages for the defamed person. The press law also provides penalties for defamation, including the publication of a corrigendum and the obligation to pay damages.

There are, however, limits to the ban on defamation in Spain. For example, defamation cannot be prosecuted if the defamatory statements were published for the purpose of defending freedom of expression or reasonably criticizing a person or company. Similarly, defamation cannot be prosecuted if the defamatory statements are based on proven facts and if the person who published them acted in good faith.

In Germany, how is defamation punished?

In Germany, defamation is punishable by the German Penal Code. According to Article 186 of the German Penal Code, defamation consists of "spreading slanderous or defamatory statements against a person or a group of persons, a company or an institution, in such a way as to undermine their honor or consideration”.

Defamation can be prosecuted and result in damages for the defamed person. The law also provides criminal penalties for defamation, which can be up to five years in prison for serious defamation.

There are, however, limits to the ban on defamation in Germany. For example, defamation cannot be prosecuted if the defamatory statements were published for the purpose of defending freedom of expression or reasonably criticizing a person or company. Similarly, defamation cannot be prosecuted if the defamatory statements are based on proven facts and if the person who published them acted in good faith.

If you need the assistance of a lawyer for defamation on the internet, contact the Roquefeuil lawyers, specializing in defamation, communication law and the internet.

To get a quick appointment and a first orientation, make an appointment here: make an appointment

Personal data: the CJEU retains the preponderant interest of official company registers, the communication law lawyer in Paris analyzes

by Cabinet Roquefeuil | Oct 5, 2022

#privacy #personal data #webdirectories #righttoforget: Court of Justice of the European Union – CJEU – Judgment in Case C-398/15 Camera di Commercio, Industria, Artigianato e Agricolturadi Lecce v Salvatore Manni March 9, 2017

In this ruling, the CJEU confirms the informative role of company registers, which, through the information they provide, including personal data, contribute to trade transparency.

Trade and company registers: legitimacy not in question

This position is classic.

Care will be taken to ensure that it does not benefit private directory companies which abound on the Internet, which buy data from official registers, to ensure increased and untimely publication on the Internet, without the prior authorization of professionals and of the companies concerned, for the sole purpose of attracting traffic to the advertisements they display alongside said data, and in their sole interest.

These private directory companies obviously remain condemnable for the unauthorized use of personal data and for the damage that they are likely to cause and that they actually cause for unsolicited “service”. An alleged freedom of expression or business loyalty cannot derive in law from infringing the freedom of enterprise and the choice of its mode of communication.

More generally, however, one can wonder about the need to indicate in these registers certain personal data of the directors. Managers can indeed be “found” by bailiffs without the publication of the manager's personal address being necessary; a simple collection by the registry and disclosure at the request of a bailiff or judge would be less detrimental to the exercise of the right to protection of privacy. At the present time, the interference of the public authority in the exercise of this right seems excessive and could undoubtedly be challenged before the ECHR.

The personal data of the manager of a legal person

The personal data of the commercial company manager

by Cabinet Roquefeuil | Jun 18, 2022

January 18, 2022

Updated Nov 24, 2022

At the time of personal data protection (Directive 95/46/EC of the European Parliament and of the Council, of 24 October 1995, on the protection of individuals with regard to the processing of personal data and on the free movement of such data; REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (general regulation on data protection), the manager of a commercial company can legitimately consider it abnormal to see his personal data published and repeated in multiple parasitic directories.

See as well : The negative opinion

These parasitic directories "pump" the commercial register to attract web traffic and advertising revenue, under the pretext of providing more or less muddy services, such as the collection of opinions and ratings on companies, or referencing on the internet against hard cash.

When the manager's personal data is concerned, there is an invasion of the privacy of these persons.

Especially since the publication of the personal data of the leader is useless if not to stir up the unhealthy curiosity of people.

There are indeed many other ways to reach a leader in case of debt or abuse on his part.

However, the case law is reluctant to sanction the platforms, on the pretext of a certain conception of freedom of expression, or of an alleged need in the general interest to publish the personal data of the leader.

Thus, in a CJEU judgment, March 9, 2017, case n°C 398/15, the Court of Justice of the Union considers that the publication of personal data in the register meets a legal obligation and an interest in the protection and transparency of trade, and must therefore compromise, with some exceptions, the right to be forgotten recalled by the judgment Google Spain C-131/12 of May 13, 2014 which established the right not to be indefinitely filed and sued by Google in defiance of the objectives of social reintegration provided for by law.

The Court lays down the only limit that the processing of personal data does not exceed the "[duration] necessary for the achievement of the purposes for which they are collected or for which they are subsequently processed”.

The concept is very vague, especially since some personal data of the leader, in particular his personal address, are often obsolete and useless.

Certain national laws, including France, impose the publication of the personal address of the leader, and even though Union law only imposes the publication of the name and functions (Dir. 68/151/CEE , Article 3, which aims to allow all interested third parties to be informed, without them having to prove a right or an interest requiring protection (ECJ, n° C-97/96, Judgment of the Court, Verband deutscher Daihatsu-Händler eV v Daihatsu Deutschland GmbH, 4 December 1997).

Article 8 of the European Convention on Human Rights (hereinafter the “Convention” or the “ECHR”) prohibits state interference with privacy when it is not necessary for the prosecution of certain Goals, even if it is provided for by law, in these terms:

“Right to respect for private and family life

Everyone has the right to respect for his private and family life, his home and his correspondence.

There may be interference by a public authority with the exercise of this right only insofar as such interference is prescribed by law and constitutes a measure which, in a democratic society, is necessary for national security, public safety, the economic well-being of the country, the preservation of order and the prevention of criminal offences, the protection of health or morals, or the protection of the rights and freedoms of others .”

There can be interference by “public authority” in the exercise of this right only under certain conditions.

According to the Convention, an interference by a public authority is only admissible if it fulfills two criteria:

an organic criterion:

the interference must be “prescribed by law”; (but here the CJEU considers that it is any text of the public authorities, and not the only "Law")

a proportionality criterion according to well-defined objectives which are:

national security
public safety
the economic well-being of the country
the defense of order
the prevention of criminal offenses
the protection of health or morals
the protection of the rights and freedoms of others

The French practice of disclosure by the services of the trade and companies register of the personal address constitutes an “interference by public authority”;

According to the European Court of Human Rights:

A person's home address constitutes personal information relating to private life and which, as such, enjoys the protection afforded by Article 8 (Alkaya v. Turkey, § 30).

The services of the registry of the commercial and companies court have the practice of systematically collecting and communicating on request, in particular via a simple order of Kbis extract, the personal address of the manager.

The public and systematic disclosure of the manager's personal address obviously infringes his private life, since it designates a priori his place of family life, his "domicile" as mentioned in Article 8 (1) aforementioned.

This public and systematic disclosure is to be distinguished from the simple collection of the personal address, which in itself is justified by a need to preserve an indication of the location of the person of the manager which can be communicated on presentation of a legitimate reason.

It is commonly accepted that the personal address of a natural person is not necessary in itself for his identification, only his date and place of birth are usually considered necessary for this purpose.

On the other hand, the designation of the manager's personal address to the public necessarily infringes the privacy of the manager when the latter expresses his wish that his address not be disclosed, and whatever the motivation of the leader, the latter being in the best position to assess the impact of such disclosure on his private life, and secrecy being inherent in the notion of respect for private life.

There is therefore an invasion of private life, that is to say “interference by a public authority with the exercise of the right to respect for private and family life” to use the terms of the Convention.

The Court of Cassation ruled that:

"Disclosure of an agent's address by the Administration without his consent would constitute an invasion of privacy" (Cass. Civ. 1re, 6 November 1990, Bull. civ. I, no. 238).

National and European case law, which will be discussed below, confirms that the non-consensual disclosure of the personal address constitutes an invasion of privacy.

This interference is unconventional because it is not "necessary", in the sense that neither the national or Community rules, nor the parliamentary proceedings, indicate in what way the disclosure of the leader's personal address is "necessary" for the pursuit of an objective set in 2° of 8 of the European Convention on Human Rights, which therefore suggests that this interference does not pursue any of the objectives set by 2° of 8° of the ECHR and is totally disproportionate ;

French case law and decisions or opinions of administrative authorities

The non-disclosure to the public of the personal address does not otherwise affect the right of a third party to be provided with the personal address of the manager upon presentation of a legitimate reason, provided for by the Béteille law.

The judgment of the Court of Cassation rendered on March 19, 1991:

"if any person is entitled, in particular to escape indiscretion or malice, to refuse to reveal the place of his domicile or residence, so that in principle his will must be respected on this point by third parties , it is different when this concealment is dictated to him by the sole illegitimate intention of evading the performance of his obligations and defeating the rights of his creditors; that it is up to the judge in chambers to put an end to such a fraudulent maneuver, as soon as it is manifest” (Cass. Civ. 1ère, March 19, 1991, appeal no. 89-19.960)

Today, law n° 2010-1609 of December 22, 2010 known as the Béteille law goes further by widening the access to information of the judicial officer in charge of enforcement and holder of an enforceable title, by allowing him to obtain information directly from the third parties who hold it without going through the President of the Court.

Thus, the administrations of the State, the regions, the departments and the municipalities, the companies conceded or controlled by the State, the regions, the departments and the municipalities, the public establishments or organizations controlled by the administrative authority must communicate to the bailiff in charge of enforcement, holder of an enforceable title, the information they hold allowing the debtor's address to be determined, the identity and address of his employer or any third-party debtor or custodian of liquid or payable sums and the composition of its real estate assets, to the exclusion of any other information, without being able to oppose professional secrecy. (Article L 152-1 of the Code of Civil Enforcement Procedures).

However, this information is strictly limited to the legal framework. They may only be used to the extent necessary for the performance of the title(s) for which they were requested. It is in particular forbidden for the judicial officer to communicate them to a third party (Cass. Civ. 1ère, March 22, 2012, n° 10-25811) or to combine them in a personal file.

“The address belongs to privacy. When the interest in knowing the address without the consent or even against the opposition of the person is of less value than the protection of privacy, the latter prevails. (CA Toulouse, ch. soc. 4, sect. 1, September 25, 2015, n° 13/01895: JurisData n° 2015-021972)

“Thus in the present case, after recalling that the personal address is information which is a matter of private life (see also e.g. Cass. 1st civ., March 19, 1991, n° 89-19.960: JurisData n° 1991-000768 – Cass. 1st civ., June 30, 1992, No. 90-18.458: JurisData No. 1992-001674; Bull. civ. 1992, I, No. 213), the Court of Appeal investigated whether a interest here superior to the right to respect for the employee's private life justified revealing her address without her consent. “

The CADA believes that the merchant's home address should be concealed:

“The commission for access to administrative documents examined in its meeting of February 7, 2013 your request for advice relating to the communicable nature of a list of traders from an external market, showing the type of trade and their seniority.

The commission recalls, as a preliminary point, that if the name of a merchant, necessarily registered in the trade and companies register, is information the disclosure of which is not contrary to the provisions of II of article 6 of the law of July 17, 1978 relating to statements covered by the secrecy of private life, is however prohibited, by these provisions, the disclosure of documents revealing the working hours and the dates of holidays of merchants as well as any statement relating, for example, to the seller's address, date of birth or identity card number.

It also considers that are covered by the commercial and industrial secrecy protected by II of article 6 of the 1978 law, the documents which would

display any data relating to the commercial strategy of the businesses concerned, such as, for example, the dates and times of opening of the stalls.

The commission considers, in application of these principles, that the list of merchants on the external market of the municipality, which shows the type of products sold and the seniority of the businesses, is communicable, subject to the prior concealment of the address traders, as well as the indication of their days of presence on the market, which are likely to infringe the protection of the privacy of the interested parties or commercial and industrial secrecy.

European Union law

Directive (EU) 2017/1132 of the European Parliament and of the Council of June 14, 2017 relating to certain aspects of company law, taking over from Council Directive 68/151/EEC of March 9, 1968, aimed at coordinating, to make them equivalent, the guarantees which are required, in the Member States, of companies within the meaning of the second paragraph of Article 58 of the Treaty, in order to protect the interests both of the members and of third parties, require that the directors be "identified" but never mentions their home address.

In case C-398/15 of 9 March 2017, the Court, without evading the ability of Member States to provide for the provisions they wish with regard to the collection of personal data by commercial registers, specifies that only the collection of the identity of the directors is required:

32 In that regard, it should first be noted that, under Article 2(1)(d) of Directive 68/151, Member States must take the necessary measures to ensure that advertising mandatory relating to companies relates at least to the appointment, the termination of functions as well as the identity of the persons who, as a legally provided for body or members of such a body, have the power to commit the company concerned with regard to third parties and to represent it in court or participate in the administration, supervision or control of this company. In addition, according to the same Article 2(1)(j), the appointment and identity of the liquidators as well as, in principle, their respective powers must also be made public..”

Latvia no longer requires the ruler's home address (Ruķers M., Kā izpaužas tiesības uz personas datu aizsardzību publiski pieejamā reģistrā. Jurista Vārds, 26.jūnijs 2012/NR.26(725).

Same in Dutch law,

Section 16 of the Commercial Register Act 1996 provides for the possibility of restricting the publication of certain personal data for privacy purposes. In this regard, Article 32 of the 1996 Order on the Commercial Register stipulates that a manager of a legal entity may request that the mention of the domicile address of the said manager be blocked under certain conditions.

The Commercial Register Law of 2007 entered into force on 1 July 2008. The Commercial Register Order of 2008 provides in Article 51 for a limitation of the publication of certain personal data for the purposes of compliance with the private life. According to paragraph 1 of this provision, the mention of the address of the domicile of a manager, a commissioner, a representative, a sole shareholder, a holder of shares not fully paid up, a liquidator or a manager of a foreign company, cannot be consulted by third parties. However, there is an exception for, in particular, administrative authorities, lawyers, bailiffs, notaries and certain supervisory authorities. A natural person may request that the publication of his domicile address be blocked under certain conditions pursuant to Article 51(3) of the aforementioned decree. 22

Same in the UK:

Although most of the information held at Companies House is made available to the general public, some information, such as private addresses and full dates of birth, is not entered on the register but is shared with certain specified public authorities, such as as the police, as well as credit reference agencies. The legislator considers that the non-disclosure of the day of birth strikes a fair balance between the principles of transparency and confidentiality.

-Small Business and Enterprise and Employment Act 2015. Following complaints of identity theft, since October 2015 only the month and year of birth appear on the public register, “Great news – we're listening to our customers and making changes”, Companies House Blog, 17 June 2015, https://com panieshouse.blog.gov.uk/2015/06/17/great-news-were-listening-to-ourcustomers-and-making-changes/. It appears from the same article that, from now on, the day of birth will be redacted from the copies of the documents transmitted to the register in paper format. Regarding past transmissions, Companies House is working on an effective solution

-“Restricting the disclosure of your information”, Companies House March 2016, p. 3 and 5. 9

-“Our register: advice on protecting your personal information”, Companies House Blog, 21 January 2016, https://companieshouse.blog.gov.uk/2016/01/21/our-register-advice-on-protectingyour-personal -information/.

The national judge can set aside an unconventional national standard;

Even in the event that the Constitutional Council has declared a legislative provision to be in conformity with the Constitution, the judicial and administrative courts always retain the possibility of setting aside its application when they deem it contrary to the Convention (See for example Cass., Full Ass. April 15, 2011 No. (10-30.316)…hope is born.

We will lynch you: the right to be forgotten on the internet

We welcome the judgment of November 22, 2022, the Court of Jusitce (Judgment of the Court in joined cases C-37/20 | Luxembourg Business Registers and C-601/20 | Sovim) which goes towards more protection of life privacy by noting the invalidity, under the Charter, of the
provision of the Anti-Money Laundering Directive requiring Member States to ensure that
information on the beneficial owners of companies and other legal entities incorporated in their territory
are accessible in all cases to any member of the general public.

According to the Court, public access to beneficial ownership information constitutes a serious interference
in the fundamental rights to respect for private life and the protection of personal data
staff, respectively devoted to Articles 7 and 8 of the Charter. In fact, the information disclosed
allow a potentially unlimited number of people to learn about the material and financial situation
of a beneficial owner. Furthermore, the potential consequences for data subjects resulting from any misuse of their personal data are aggravated by the fact that, once
available to the general public, these data can not only be freely consulted, but also
be stored and disseminated.

Online insult: be assisted by a press law lawyer in Paris

by Cabinet Roquefeuil | Mar 15, 2022

An insult is constituted by a word, by a writing or by an expression uttered towards a person, with the aim of offending him. The insult can be private or public.

The development and full growth of social networks and the web are accelerating the phenomenon of online insults. A lot of offensive content is published on the internet every day.

Have you been the victim of an insult and want to know how you can defend yourself? Pierre de Roquefeuil, a lawyer specializing in communication law in Paris, supports you to advise you and to ensure that your interests are respected.

Online insults: what are the different types of insults?

The insult can be public or private.

Whatever it is, it constitutes a contemptuous act aimed at a person without referring to a specific behavior or fact. The notions of insult and defamation have similarities. Defamation absorbs insult. Defamation supposes that a specific fact is imputed and whose truth can be the subject of a debate (to be distinguished from mere opinion) undermining honor and consideration. In the same way, the insult tries to attack the honor and the consideration, but without referring to a precise fact. It can be excused if it originates from a provocation.

Insult should not be confused with threat. This designates the fact of expressing to a person the intention to harm him, in order to scare him. Two types of threats are distinguished: the death threat and the threat to commit an offense or a crime. If the threat is accompanied by blackmail, this constitutes an aggravating circumstance heavily punished by law.

Public insult is also to be distinguished from outrage, which is punished much more severely. A recent decision of the Constitutional Council reminds us of this. The contempt is addressed directly to the victim and the one who commits it does not seek an audience.
https://www.conseil-constitutionnel.fr/decision/2021/2021896QPC.htm

In order to be able to determine the qualification that must be given to offensive comments or publications, various criteria must be taken into account. The expression itself must be taken into account, but also the circumstances in which the remarks were made.

The lawyer specializing in communication law advises you and helps you identify the exact fault committed by the author of the comments online. Take the attachment of Pierre de Roquefeuil, a lawyer specializing in communication law in Paris.

Right to be forgotten, to be delisted from search engines

The private insult

A private insult can be addressed to a person in different ways: a message, a letter. The private insult can also be stated in a small committee of people who share the same interest, for example: during a theater or music lesson. The insult is constituted in the presence or not of the victim.

Private insult is a matter for the police court and constitutes a fourth-class misdemeanour. However, when it is of a racist and discriminatory nature, the contravention goes to the fifth class.

The public insult

Public insult concerns an insult uttered in a public way. It can be pronounced on the public highway, during an event or in a residential building.

“Any outrageous expression, terms of contempt or invective which does not contain the imputation of any fact is an insult” according to the 2nd paragraph of article 29 of the law of 1881.

Public insult is an offense falling within the jurisdiction of the criminal court. She is punished with a fine of 12,000 euros. However, if the insult is characterized in a racist or discriminatory way towards a religion, it can be punished by one year's imprisonment and a fine of 45,000 euros.

The insult aimed at a company or a staff member is requalified as an insult.

Insult and social networks

There are an estimated 4.2 billion internet users worldwide. Thus, with this important virtual continent, it becomes very complicated, if not impossible, for social networks to control all the publications and comments published every day on platforms around the world.

More than 2.9 million pieces of hateful content have been reported to Facebook in recent months. Social networks have become communication tools that facilitate abusive language. Indeed, the freedom of communication offered by social networks can lead its users to think that they can express themselves without risk. However, freedom of expression has its limits. Insulting remarks made on the internet as in “normal” life are punishable by law and the penalties can be very heavy.

Social networks: public or private insult?

An insult uttered on social networks can be private or public depending on several criteria.

In the event that the insult is posted publicly on social networks, that it can be consulted by several people and even shared, it is public.

On the other hand, when an insult is published privately: in a restricted group or in a private message not visible to the public, it is considered private.

In order to be able to characterize the insult as private or public, justice attaches to a parameter that can switch the insult from public to private, or vice versa.

Indeed, a profile configured in "private" mode to which few people have access, is more likely to lead to a qualification of private insult.

On the contrary, a profile set up in a public way on social networks will further lead to the public nature of an insult.

Insult on social networks: the author is a minor, what do you risk as parents?

Insults on social networks are heavily sanctioned, in the same way as insults outside social networks.

Whatever the age of the child, if he is the author of insulting remarks on social networks, he will have to justify his actions in court. The penal majority being set at 18 years, the child will not be punished as heavily as the adult. On the other hand, the parents being held civilly responsible for the faults committed by their minor children, will have to answer for the acts of their child.

Thus, the justice system can decide to sanction the parents with a fine or to compensate the victim of the insulting remarks.

Insults by an employee towards his company: the company's remedies

An employer can react to comments made by an employee on social networks. Insult can be observed when:

– The terms that have been used are offensive, violent, derogatory or offensive. They do not need to be attributed to anyone to constitute an insult.
– The remarks were made public on social networks and are visible to many Internet users.

An employer faced with insults from an employee can sue the latter for public insults. This misconduct also constitutes a real and serious cause or serious misconduct that may lead to dismissal.

You are the victim of insults on social networks and you want to know how to defend yourself? Some initial advice from Pierre de Roquefeuil, a lawyer specializing in communication law in Paris:

– Constitute proof of these insults. The lawyer assists you in compiling evidence;
– If you know the identity of the author of these insults, it seems illusory to address him directly so that he withdraws the insult; the lawyer can assist you in the action to be taken, and on the possible legal proceedings to be initiated, and in what time frame;.

Platforms often set up reporting systems that may be enough to have the insult removed. It will then be a question of constituting a proof before the deletion by the platform of the offensive remark.

Platforms can also adopt an attitude of refusal to withdraw, and require that the author of the comments be first sanctioned by justice.

They may also be reluctant to communicate the identification data of the author of the remarks, for the sake of confidentiality, including on legal injunction.
–
– Take the attachment of a lawyer specialized in communication law for the continuation of the procedure.

Prosecutions for defamation, insult, or other so-called press offences, or for other cyber offenses referred to in the penal code, or even for commercial denigration which often amounts to insult, are not simple prosecutions. They require specific technical know-how. Their purpose is more to enforce principles than to obtain compensation.

Insult on the internet: the lawyer in communication law in Paris accompanies you and advises you

When the victim has just become aware of the insult pronounced against him, he must first begin to constitute his evidence. It is however recommended, at this stage, to call on a specialized lawyer.

The victim will be able to make a capture or a photo of the insult of which he has just been the victim, or even note the URL of the publication. This must show the date and time when the insult was published. The victim can also gather additional evidence: testimonies, telephone records, letters, etc.

The 3-month limitation period will begin on the date of publication of the insult. The victim will therefore then have 3 months to initiate proceedings against the perpetrator.

For evidence to be as reliable as possible, the victim can appeal to a bailiff who will draw up a report established according to standard NF 67-147 and which will guarantee the reliability of the report of the public insult. The report will have to be drawn up before the disappearance of the remarks. A report drawn up by a bailiff then guarantees the smooth running of the procedure.

The victim can then lodge a complaint with the gendarmerie or the police station. If the author is known, the complaint will be filed by direct citation. On the other hand, if the author is not known by the victim, a complaint against X will have to be filed.

Secondly, after gathering proof of publication of the insult, the victim must request its withdrawal. If it was published on a social network, it must be able to report the content. If the insult has been published on the web, the victim can contact the site host.

The victim will then have to contact a lawyer specialized in communication law in order to be assisted in his steps. The specialized lawyer will be able to seize the competent judge in order to try to have the insults removed within a period that is not too long. Then, the specialized lawyer will file a criminal complaint which will trigger an investigation to identify the author of the insult, or will ask the judge, on request, in summary proceedings or in an accelerated procedure on the merits, to enjoin the platform to provide identification data.