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

by | 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

custody and password

by | Nov 7, 2022

Updated November 7, 2022

One person was arrested for possession of narcotics. While in custody, she refused to give investigators codes to unlock two phones believed to have been used in drug trafficking.

This person, prosecuted before a criminal court, was not sentenced for having refused to give his telephone unlocking codes; she was released.

Passwords and encryption conventions allow the protection of data, and their disclosure imposed by the authorities can endanger individual freedom and democracy but also allow the repression of crime.

The Constitutional Council, on QPC where La Quadrature du Net intervenes, judges that the incrimination of refusal to communicate a password is not contrary to the Constitution.

Article 434-15-2 of the Penal Code, in its wording resulting from the law of June 3, 2016 provides:


"Is punished by three years' imprisonment and a fine of €270,000 the fact, for anyone having knowledge of the secret convention of deciphering a means of cryptology likely to have been used to prepare, facilitate or commit a crime or an offence, to refuse to submit said agreement to the judicial authorities or to implement it, on the requisitions of these authorities issued pursuant to Titles II and III of Book I of the Code of Criminal Procedure. 

"If the refusal is opposed while the delivery or the implementation of the convention would have made it possible to avoid the commission of a crime or an offense or to limit its effects, the penalty is increased to five years of imprisonment and a €450,000 fine.
Article 29 paragraph 1 of the 2004 law for confidence in the digital economy (theoi n° 2004-575 of June 21, 2004 for confidence in the digital economy) provides:

Means of cryptology means any hardware or software designed or modified to transform data, using secret conventions or to perform the opposite operation with or without a secret convention. These cryptology means are mainly aimed at guaranteeing the security of the storage or transmission of data, by making it possible to ensure their confidentiality, their authentication or the control of their integrity.

 
The Council makes a classic reading of the text, that is to say strict, in application of the principle according to which criminal law is to be interpreted strictly, and deduces from this the constitutionality of the provision (in this case paragraph 1 of the article, the only one concerned).
 
The prosecution must characterize against the suspected person:
 
– knowledge of the password or the convention (the person who is required is the one who actually knows the password, and not only the person who is supposed to know, or who could, or should, know…the technical intermediaries as companies relying on their machines to manage and access passwords could justify their refusal by opposing the absence of any natural person (human being) having access to the secret agreement);
– the probability that the means of cryptology has been used for criminal or tortious purposes.
 
The legal authorities concerned are those which intervene within the framework of the preliminary investigation or of flagrance or the instruction (titles II and III of book I of the code of penal procedure). The request must respond to a formalism (official notification of the consequences of a refusal).
 
Decision 2018-696 of the Constitutional Council of March 30, 2018.
A simple request for the communication of a password by a police officer investigator therefore does not appear to allow the facts to be qualified. And the refusal to communicate the locking code, a "PIN" (for Personal Identification Number) is not a refusal to communicate an encryption convention. In this sense, moreover, Paris 16 April 2019, n°19/09267.
 
Conventionality. The Court of Cassation ruled that the offense of refusing to hand over a secret cryptological decryption agreement did not in itself infringe the right to remain silent and not to incriminate oneself arising from Article 6 of the European Convention on human rights (Cas. crime, Dec. 10 2019, No. 18-86.878)
 
The Court of Cassation indicates that the refusal to deliver the PIN may amount to refusing to deliver the decryption agreement (Crim.13 oct.2020, n°20-80150).
 
This involves distinguishing between the code allowing access to a terminal (computer, telephone, server, SIM card, etc.) and the key used to decipher the stored or circulating data or metadata.
 
In some cases the PIN or other secret codes and passwords do not prevent access to data, in others yes, the case law is therefore hesitant (CA Paris 16 April 2019, 18-09.267;  Cas. crim., 13 Oct. 2020, no. 20-80.150; Cas. crim., 13 Oct. 2020, n° 19-85.984).
 

In its judgment of November 7, 2022, the Court of Cassation, plenary assembly, appeal no. K 2183.146, indicates, in its press release:

A " means of cryptology is intended to render information incomprehensible, in order to secure its storage or transmission. A " secret decryption convention allows the clearing of encrypted information. When a mobile phone is equipped with a " means of cryptology », their home screen unlock code may be a " decryption key » if the activation of this code has the effect of clarifying the encrypted data that the device contains or to which it gives access. Therefore, if a mobile phone with these technical characteristics - as is the case with most mobile phones today - is likely to have been used for the preparation or the commission of a crime or offense, its holder, who will have been informed of the penal consequences of a refusal, is required to give the investigators the unlock code for the home screen. If he refuses to communicate this code, he commits the offense of “refusal to deliver a secret decryption agreement ". Therefore, in this case, the decision of the Court of Appeal is quashed and another Court of Appeal is appointed to retry the case.

 

The personal data of the commercial company manager

by | 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.

 

 

 

Supervision of access to data stored by telephone operators

by | Mar 29, 2022

August 6, 2022 Update

Update of 22 September 2022

Update of 6 January 2023

Update of 15 March 2023

In the context of a preliminary investigation or an investigation of flagrante delicto, the public prosecutor has the possibility of requesting from a judicial police officer the transmission of the telecommunications data of a person concerned by the investigation. , including the suspect. This remedy is provided for by the French code of criminal procedure: article 60-1 and article 77-1-1.

Telecommunications data can be crucial in an investigation and reveal a lot of information to investigators. Whether in terms of geolocation data or traffic data, the information helps to advance a judicial investigation.

However, this mechanism could be severely limited following a judgment delivered by the Court of Justice of the European Union on March 2, 2021. This follows a case in Estonia but could nevertheless impact the French procedure.

Do you want to know your rights and obligations with regard to the retention of data by a telephone operator? Pierre de Roquefeuil, a lawyer specializing in information technology law in Paris, supports you to advise you and to ensure that your interests are respected. The specialized lawyer will help you to identify the procedure adapted to your situation.

In which cases can the device for accessing data stored by telephone operators be used?

French law requires telephone operators to retain metadata for one year so that the intelligence services and the authorities can access it in the context of a judicial investigation.

Stone of Roquefeuil, lawyer specializing in digital and communication law in Paris, provides you with some information on the management of access to data stored by telephone operators.

Files list all our telecommunications data: the date and time of telephone communications, the identity of the interlocutors, but also geolocation data. Private companies keep this data for one year in order to allow law enforcement and intelligence services to have the possibility of requesting this information in the context of an investigation.

Three decrees of October 20, 2021 determine the applicable framework for the retention of connection data by electronic communication operators, internet access providers and hosts. They specify the conditions for communicating authorization requests.

The request for authorization to communicate connection data and the prior authorization to access the data must be formulated in writing and transmitted in such a way as to ensure its confidentiality and to be able to certify that it has been received.

Thus, the legislation provides that the request for authorization to communicate connection data can specify for each survey:
– The name of the suspected person or the name of any other person for whom access to the connection data is necessary for the investigation. If necessary, when the name is not known, the IP address or any other connection data may be requested.
– The connection data or types of connection data requested for each person or in each case.
– The periods during which access to connection data is requested.
– The factual and legal elements that justify the request.

These decrees demonstrate the importance of connection data in the context of legal cases. The public prosecutor may, in the context of an investigation, request all the connection data concerning him. This data can allow investigators to obtain key information in an investigation.

Indeed, in the context of the prevention of terrorism, the use of metadata is essential. Location data of suspected individuals as well as wiretaps can provide investigators with key information. This information can prevent individuals from acting out. With a view to preventing national security, the use of this information is authorized by the French internal security code.

The Roquefeuil lawyers firm sheds light on French legislation on access to metadata. The specialized lawyer explains to you the consequences following the judgment of the Court of Justice of the European Union.

What are the consequences following the judgment of the Court of Justice of the European Union?

The Court of Justice of the European Union (CJEU) has ruled practices of “widespread and undifferentiated” retention of login data unlawful. Since these declarations, the conservation of this device in France remains uncertain.

In fact, in the CJEU C-793/19 SpaceNet preliminary ruling case, the Advocate General specified that European law "opposes national regulations which require providers of electronic communications services available to the public to retain, in a preventive, general and undifferentiated way, the traffic data and the location data of the end users of these services for purposes other than those of the protection of national security against an actual and present or foreseeable serious threat”.

The Advocate General also indicated that legislation is unlawful when it “does not make access by the competent authorities to data relating to traffic and location data stored subject to a control carried out beforehand by a court or by an administrative entity. independent.

Also, the Constitutional Council recalled that the generalized retention of all connection data is contrary to the Constitution.

For example, the Court of Justice of the European Union was seized of a question from a Spanish court in the context of the investigation of a case. This one concerns a robbery during which the victim's mobile phone was stolen. The judge in charge of investigating the case had refused to request the transmission of the telephone numbers activated by the stolen device, considering that the offense was not serious enough to justify access to personal data. Thus, the court of appeal questioned the Court of Justice of the European Union on this subject. The latter then replied that Article 15 of the directive, read in the light of Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, "must be interpreted as meaning that access by public authorities to data aimed at identifying the holders of SIM cards activated with a stolen mobile telephone, such as the surname, first name and, where applicable, address of these holders involves an interference with the fundamental rights of the latter, enshrined in those articles of the Charter, which is not so serious that such access should be limited, in matters of prevention, investigation, detection and prosecution of criminal offences, to the fight against serious crime".

Consequently, access to personal data stored by telephone operators cannot be justified by minor offenses seriously infringing the right to privacy.

Nevertheless, the Court of Justice of the European Union specifies that it is up to each nation to apply its national law, specifying that it is up to the criminal court to discard data collected in a way that does not comply with Union law. in the event that the persons being prosecuted are unable to comment effectively on the information and evidence. These come from a field beyond the knowledge of the judges and which are likely to influence in a preponderant manner the assessment of the facts.

Indeed, the Court of Justice of the European Union recognizes that the retention of metadata can be useful for the purpose of preventing a serious threat to national security. However, it insists on the respect of three conditions: the limit of the mechanism in time, the possibility of justifying the seizure of this lever by a serious, real, current or foreseeable threat to national security. Finally, the use of metadata must be carried out under the effective control of a court or an independent administrative authority.

As a result, the automated processing of data relating to the location in the prevention of terrorism provided for by the Internal Security Code is authorized. This must make it possible to filter all the data to bring out only the data making it possible to search for and identify the person.

On the other hand, when there is no serious threat to national security, data retention for prevention must be targeted. For example, telephone tapping is only authorized for organized crime or terrorism investigations. They are possible for crimes and misdemeanors punishable by more than two years of imprisonment. As for the geolocation data, the intelligence services or the police can only use them for offenses punishable by more than five years of imprisonment, or three years in the event of harm to the person.

Your login details have been used as part of an investigation and you would like advice? Stone of Roquefeuil, lawyer specializing in digital and communication law in Paris, accompanies you to advise you and to ensure that your interests are respected. The specialized lawyer will help you to identify the procedure adapted to your situation.

Who keeps what? Operators keep the metadata, and transfer it to the authorities, under what conditions? What metadata?

Between national and community case law, the rules still seem to be floating, but to the advantage of GAFAM who try to uphold the confidentiality due to their subscribers and at the same time an American conception of freedom of expression which consists in admitting all slander , anonymous or not.

For a public opinion still fond of stoning, in defiance of the most basic objectives of social reintegration.

Passwords and custody

Police custody and the right to silence

Negative and disparaging reviews

The new internet regulation in preparation: DSA – DMA

The draft e-privacy regulation

 

August 6, 2022 Update

Court of Cassation.

Cas. crime, July 12 2022, no. 21-83.710, 
Cas. crime, July 12 2022, no. 21-83.820,
Cas. crime, July 12 2022, no. 20-86.652, 
Cas. crime, July 12 2022, no. 21-84.096, 

 

EU law Traffic and location data iP addresses Civil identity  
Serious threats to national security Retention by order of the authorities with the possibility of judicial recourse for verification Retention by order of the authorities with the possibility of judicial recourse for verification Retention by order of the authorities with the possibility of judicial recourse for verification  
serious crime

Retention of certain data on limited injunction

Rapid, more extensive retention of certain data on limited injunction, on prior control,  (case law = in any case contestable before an independent judge in the event of a grievance)

 Preservation on limited injunction Conservation  
Others No conservation No conservation Conservation  

 

CJEU

CJEU 20 September 2022, C793/19, C794/19

CJEU, March 2, 2021, aff. C-746/18, HK/Prokuratuur

Oct. 6, 2020, La Quadrature du net [Assoc.], aff. C-511/18, C-512/18 and C-520/18,
Apr. 5, 2022, Commissioner of An Garda Síochána, aff. C-140/20,
 Oct. 2, 2018, aff. C-207/16

Relevant texts:
Article L. 34-1, III, and III bis of the Postal and Electronic Communications Code

The Law of July 30, 2021 – 2021-998 (art.17) amending the LCEN, art.6 II, (law no. 2004-575 of June 21, 2004) and L34-1 post and electronic communications code
Articles 60-1, 60-1-1, 77-1-1 and 77-1-2, articles 99-3 and 99-4, of the Code of Criminal Procedure

Three decrees of October 20, 2021

Decree No. 2021-1362 of October 20, 2021 relating to the retention of data enabling the identification of any person having contributed to the creation of content put online, taken pursuant to II of Article 6 of Law No. 2004-575 of June 21, 2004 for confidence in the digital economy, replacing (repealed) Decree No. 2011-219 of February 25, 2011 relating to the retention and communication of data allowing the identification of any person who creation of online content

“e-Privacy” Directive 2002/58/EC of the European Parliament and of the Council, of July 12, 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (privacy and communications directive electronic)

cons. const.

May 20, 2022, No. 2022-993 QPC

Board of state

CE, 21 Apr. 2021, n° 394922, 397844, 397851, 393099, 424717 and 424718 (French Data Network)

AC Paris

18 Feb. 2022, n°20/13824, would limit the communication of identification data to criminal matters, confirming interim order on article 145 of the code of civil procedure and article 6 LCEN
April 27, 2022

TJ – TGI Paris

January 30, 2013
April 5, 2022

 

Comment :

In a judgment of March 2, 2021 (CJEU, March 2, 2021, aff. C-746/18, HK/Prokuratuur), the CJEU stated that access to login data can only be authorized:

– if this data has been kept in accordance with the requirements of European law;
– if it took place for the purpose that justified the storage or a more serious purpose, except for rapid storage;
– if it is limited to what is strictly necessary;
– with regard to traffic and location data, if it is limited to procedures aimed at combating serious crime, and;
– if it is subject to prior control by a court or an independent administrative body.

The Court of Cassation rules that Articles 60-1, 60-1-1, 77-1-1 and 77-1-2 are contrary to EU law in that they do not provide for prior control by a jurisdiction or an independent administrative entity.

Article L. 34-1, III bis, of the Postal and Electronic Communications Code:

"The data retained by the operators pursuant to this article may be the subject of a rapid retention order by the authorities having, in application of the law, access to data relating to electronic communications for prevention purposes. and repression of crime, serious delinquency and other serious breaches of the rules for which they are responsible for ensuring compliance, in order to access this data. »

 

 

 

Update September 22, 2022

Article 60-1-2 of the Code of Criminal Procedure:

Creation LAW n°2022-299 of March 2, 2022 – art. 12

On pain of nullity, requisitions relating to the technical data making it possible to identify the source of the connection or those relating to the terminal equipment used mentioned in 3° of II bis of Article L. 34-1 of the Post and electronic communications or on the traffic and location data mentioned in III of the same article L. 34-1 are only possible, if the necessities of the procedure so require, in the following cases:

1° The proceedings relate to a felony or misdemeanor punishable by at least three years' imprisonment;

2° The proceedings relate to an offense punishable by at least one year's imprisonment committed through the use of an electronic communications network and these requisitions have the sole purpose of identifying the perpetrator of the offence;

3° These requisitions relate to the terminal equipment of the victim and intervene at the latter's request in the event of an offense punishable by imprisonment;

4° These requisitions tend to find a missing person within the framework of the procedures provided for in articles 74-1 or 80-4 of this code or are carried out within the framework of the procedure provided for in article 706-106-4.

=> Waivers of anonymity are in principle prohibited, in particular with regard to civil offenses without criminal qualification or minor offenses (typically defamation and insults that do not discriminate against individuals), which goes against the requirements the right to a fair trial provided for by the ECHR. Advances in case law are therefore still to be awaited.

The texts (articles L34-1 and R10-13 of the postal and electronic communications code, L34-1 resulting from the reform Law of July 30, 2022) only allow a waiver of civil identity and data provided when signing the contract (by the prosecution only?) “for the purposes of criminal proceedings”.

The provision of civil identity and contract data (initially provided by the user) by an operator or a host may be insufficient to flush out the perpetrator of an infringement; the so-called technical data for the location and identification of the machines and software used are most of the time essential for the precise identification of the author and the circumstances of the offence.

Several avenues are mentioned to challenge this current approach of the legislator:

  • contesting the applicability of the directive “e-Privacy” 2002/58/EC of the European Parliament and of the Council, of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (directive on privacy and electronic communications Directive which underlies the reform, but which would not be intended to govern public expression, only private communications;
  • by challenging the constitutionality of the law of July 30, 2022 for infringement of the right to a fair trial;

 

 

 

 

Update of January 6, 2023:

A remarkable summary order of the Paris judicial court of 21 December 2022 (Tribunal judiciaire de Paris (ref.), 21 December 2022, n° 22/55886, Noctis Event and M. X. c/ Wikimedia Foundation Inc.) issued against Wikimedia recognises the right of access to the civil identity of the author of the malicious content, to his contact details, to his name and address, and to his phone number. but excluding, however, his login data – , in a context of invasion of privacy, denigration and cyberbullying (press offenses are not invoked), violations likely to justify civil and criminal actions.

The judge recalls the conditions of the summary procedure:

Article 145 of the Code of Civil Procedure provides that if there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute could depend, the legally admissible investigative measures may be ordered at the request of any interested party, on request or in summary proceedings.

The summary court, referred to in application of Article 145, has sovereign power to assess whether the plaintiff has a legitimate reason and does not have to determine whether there is urgency. It must verify whether the trial in germ alleged by the plaintiff is not manifestly doomed to failure.

Are legally admissible, investigative measures limited in time and in their purpose and proportionate to the objective pursued. It is his responsibility to verify whether the measure ordered is necessary for the exercise of the right to evidence and proportionate to the conflicting interests involved.

The judge opportunely specifies, as in response to articles L34-1 and R10-13 of the postal and electronic communications code, L34-1 resulting from the reform Law of July 30, 2022:

The mere fact that the prosecutor has the opportunity to prosecute, as the company Wikimedia Foundation Inc. maintains, cannot suffice to render unlawful the measure of investigation requested, which aims to identify the perpetrator of these acts.

> The "legitimate reason" required to justify a request for interim relief prior to a trial, in particular for the purposes of establishing evidence, cannot be annihilated by a prognosis on the prosecutor's decisions regarding future prosecutions, as the judge pointed out .

 

 

 

Update of 15 March 2023:

 Transmission to the Court of cassation of a QPC relating to Article 60-1-2 of the Code of Criminal Procedure 

Cour d’appel de Versailles / 14 déc.2022, pourvoi n°22-90.019 / 6 déc. 2022. pourvoi n°22-90.018

(Defamation of an individual - criminal prosecution)

The examining magistrate recalls that the new provisions of Articles 60-1 and 60-1-2 of the Code of Criminal Procedure (Code de la Cour de l'État) are not applicable to the case of the procedure do not allow for requisitions to be made technical connection data anonymous authors of defamatory content, taking into account the nature of the facts denounced and the penalty (a simple criminal fine).

The Investigating Chamber referred the priority question of constitutionality raised by the civil party to the Court of Cassation, stating that these provisions The new law makes it impossible for victims of defamation to access the search for the truth. the identity of those responsible for offences committed and to a judge to obtain compensation for damage that may be significant in terms of harming the honour and morality of the persons concerned, with repercussions on their life and personal situation, since only by obtaining the technical connection data can an indisputable identification of those responsible. 

Dans ses décisions du 14 mars 2023 pourvoi n° 22-90.018 et pourvoi n°22-90.019 la Cour de cassation ne renvoie pas la question au Conseil constitutionnel en indiquant que : 

quand les réquisitions ont pour seul objet d’identifier l’auteur de l’infraction, l’article 60-1-2 du code de procédure pénale limite, y compris au cours d’une information, la possibilité de requérir les données techniques permettant d’identifier la source de la connexion ou celles relatives aux équipements terminaux utilisés, mentionnées au 3° du II bis de l’article L. 34-1 du code des postes et des communications électroniques, aux procédures portant sur un délit puni d’au moins un an d’emprisonnement commis par l’utilisation d’un réseau de communications électroniques. Ces dispositions ont été introduites par le législateur afin de renforcer les garanties répondant aux exigences constitutionnelles, compte tenu du caractère attentatoire à la vie privée de telles mesures, en tenant compte de la gravité de l’infraction recherchée et des circonstances de sa commission (Cons. const., 3 décembre 2021, décision n° 2021-952 QPC) 

> il s’agit des données techniques ou « métadonnées » telles l’adresse IP et les adresses mac, les logs de connexion, d’activité, de géolocalisation ; le législateur estime que leur communication constitue une intrusion grave dans la vie privée (« ingérence dans le droit au respect de la vie privée ») et doit donc être limitée. L’accès aux données d’identité civile collectées par les opérateurs reste disponible (tels le nom, adresse, adresse mél).

 

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

by | 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.

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. The specialized lawyer will help you to identify the procedure adapted to your situation.

online hate

Responsibilities of internet and media actors

See as well :

Defamation, false testimony, slanderous denunciation…what are the differences?

The Crim judgment. Oct. 5, 2021 – 20-85.985 and the 2022 reform of the LCEN – an update on the responsibilities of internet and media players

by | Mar 1, 2022

https://www.courdecassation.fr/en/decision/615bea2b2cfb606bf051019e

This judgment is an opportunity to take stock of the national regulations applicable to the audiovisual sector, the press and the Internet, with regard to liability in so-called press offenses provided for by the law of July 29, 1881 on the freedom of the hurry.

It recalls that "communication to the public online" and "audiovisual communication", which both come under "communication to the public by electronic means" and the cascading liability regime of press law, do not refer to the "press audiovisual” referred to in several articles of the penal code which punish attacks similar to press offenses (incitement to suicide, attacks on the representation of the person, on minors, on the authority of the State, on judicial decisions).

Larticle 2 paragraph 3 of law 86-1067 of September 30, 1986, Léotard law, relating to the freedom of communication, noted :

Electronic communications means the emissions, transmissions or receptions of signs, signals, writings, images or sounds, by electromagnetic means.

Communication to the public by electronic means means any making available to the public or categories of public, by an electronic communication process, of signs, signals, writings, images, sounds or messages of any kind. which do not have the character of private correspondence.

Audiovisual communication is understood to mean any communication to the public of radio or television services, regardless of the methods of making them available to the public, any communication to the public by electronic means of services other than radio and television and not falling communication to the public online as defined in article 1 of law n° 2004-575 of June 21, 2004 on confidence in the digital economy, as well as any communication to the public of on-demand audiovisual media services .

Article 93-2 of Law No. 82-652 of July 29, 1982 on audiovisual communication provides:

Any service of communication to the public by electronic means is required to have a director of publication.

When the director of publication enjoys parliamentary immunity under the conditions provided for by article 26 of the Constitution and by articles 9 and 10 of the protocol of 8 April 1965 on the privileges and immunities of the European communities, he appoints a co-director of the publication chosen from among persons who do not benefit from parliamentary immunity and, when the communication service is provided by a legal person, among the members of the association, of the board of directors, of the management board or the managers according to the form of the said legal person.

The co-director of publication must be appointed within one month from the date from which the director of publication benefits from the immunity mentioned in the preceding paragraph.

The director and, possibly, the co-director of the publication must be of legal age, have the enjoyment of their civil rights and not be deprived of their civil rights by any judicial conviction. By way of derogation, a minor over the age of sixteen may be appointed director or co-director of the publication produced on a voluntary basis. The responsibility of the parents of a minor aged sixteen or over who has been appointed director or co-director of publication cannot be engaged, on the basis ofarticle 1242 of the civil code, only if he has committed an act likely to engage his own civil liability under the conditions provided for by the law of July 29, 1881 on the freedom of the press.

All legal obligations imposed on the director of publication are applicable to the co-director of publication.

When the service is provided by a legal person, the director of publication is the chairman of the management board or the board of directors, the manager or the legal representative, depending on the form of the legal person.

When the service is provided by a natural person, the director of publication is this natural person.

and article 93-3 of the same law: 

In the event that one of the offenses provided for in chapter IV of the law of July 29, 1881 on the freedom of the press is committed by a means of communication to the public by electronic means, the director of publication or, in the case provided for in the second paragraph of article 93-2 of this law, the co-director of the publication will be prosecuted as the main author, when the offending message has been fixed prior to its communication to the public.
Failing that, the author, and failing that the author, the producer will be prosecuted as the main author.
When the director or co-director of the publication is implicated, the author will be prosecuted as an accomplice.
Any person to whom article 121-7 of the penal code is applicable may also be prosecuted as an accomplice.
When the offense results from the content of a message sent by an Internet user to an online public communication service and made available by this service to the public in a space for personal contributions identified as such, the director or co-director of publication cannot be held criminally liable as the main author if it is established that he had no actual knowledge of the message before it was put online or if, from the moment he became aware of it, he acted promptly to remove this message.

Article 1 of Law No. 2004-575 of June 21, 2004 on confidence in the digital economy provides: 

Communication to the public by electronic means means any making available to the public or categories of public, by an electronic communication process, of signs, signals, writings, images, sounds or messages of any kind. which do not have the character of private correspondence.

Communication to the public online means any transmission, on individual request, of digital data not having the character of private correspondence, by an electronic communication process allowing a reciprocal exchange of information between the sender and the receiver.

Electronic mail means any message, in the form of text, voice, sound or image, sent by a public communication network, stored on a network server or in the recipient's terminal equipment, until that he recovers it.

And

(1 of III of article 6 of the same law 🙂 

III.-1. Persons whose activity is to publish an online public communication service make available to the public, in an open standard:

a) In the case of natural persons, their surname, first names, domicile and telephone number and, if they are subject to the formalities of registration in the trade and companies register or in the business directory, the number of their registration ;

b) In the case of legal persons, their name or company name and their registered office, their telephone number and, in the case of companies subject to the formalities of registration in the trade and companies or in the directory of trades, their registration number, their share capital, the address of their head office;

c) The name of the director or co-director of the publication and, where applicable, that of the editorial manager within the meaning of article 93-2 of the aforementioned law n° 82-652 of July 29, 1982;

d) The name, denomination or company name and address and telephone number of the service provider mentioned in 2 of I.

This omission is moreover sanctioned under the visa of paragraph 2 of VI of article 6 of the same law:

“2. Is punished by one year's imprisonment and a fine of 75,000 Euros the fact, for a natural person or the de jure or de facto manager of a legal person exercising the activity defined in III, of not having respected the prescriptions of this same article.

Legal persons may be declared criminally liable for these offenses under the conditions provided for in article 121-2 of the criminal code. They incur a fine, in accordance with the procedures provided for by article 131-38 of the same code, as well as the penalties mentioned in 2° and 9° of article 131-39 of this code. The prohibition mentioned in 2° of this article is pronounced for a maximum period of five years and relates to the professional activity in the exercise or on the occasion of which the offense was committed.

“Communication to the public by electronic means” is opposed to “private correspondence” and includes “communication to the public online” and “audiovisual communication”.

Cascading liability applies to the written press, to “communication to the public by electronic means”, but not to the “audiovisual press” referred to in certain articles of the penal code for offenses similar to press offences.

Cascading responsibility: The director of publication is the first responsible, at least when he can control the publication by means of his prior fixation.

 

Be assisted by a lawyer specializing in press law in Paris:

Roquefeuil law firm

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