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:

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.

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 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:

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

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?