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.
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.
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
– 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
– 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.
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;
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).
Defamation and non-public insults are less severely sanctioned.
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.
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).
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.
Contempt: how is it sanctioned? how to defend yourself?
Contempt is provided for and punished by the penal code:
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.
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.”
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.