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  • Writer's pictureMarie-Avril Roux Steinkühler

Liberation of women's voices: public debate in France, condemnation in Germany

The #meetoo movement has generated a wave of denunciations on social networks. Some of those targeted countered by suing the women concerned for defamation and infringement of image rights. In France, good faith was recognised on appeal and confirmed by the decision of the French Supreme Court, the Court of Cassation, on Wednesday 11 May. Although the general counsel had argued that the balance between freedom of expression and defamation was not respected and had asked to overturn the decision of the Court of Appeal, the judges of the Court of Cassation confirmed the decision that the tweets of Sandra Muller and Ariane Fornia against Pierre Joxe and Eric Brion were in the field of freedom of expression and public interest and not defamation.


In the first instance, Sandra Muller, the initiator of the French #Meetoo version, #BalanceTonPorc movement, was convicted of defamation. In a perfect antonymy, the Court of Appeal supported the freedom of expression. It considers that this fundamental freedom is part of a debate of general interest that aims to denounce "non-consensual sexual behaviour by certain men towards women"[1].


On 13 October 2017, Sandra Muller had posted the following messages online:

"#balancetonporc! You too can tell us about sexual harassment in your job, giving names and details. I'm waiting for you".

" " You have big breasts. You are my type of woman. I'm going to make you come all night" Eric Brion ex-boss of Equidia #balancetonporc ".


In the wake of this movement, Ariane Fornia, writer and daughter of politician Eric Besson, accused former minister Pierre Joxe of sexually assaulting her during a performance at the Opéra Bastille on her blog.


This is not the first time that an acquittal has been pronounced in defamation proceedings in similar situations. In two judgments of 19 April 2019, the Paris Criminal Court acquitted the newspaper MEDIAPART. The famous newspaper was sued for defamation for having revealed on 2 June 2016 that the MP Denis Baupin, was accused by several women of sexual harassment and assault. In this case, Denis Baupin, then vice-president of the National Assembly at the time of the events, was also convicted of abusive procedure[2].


Should the #metoo movement, known as #balancetonporc in France, be protected in the name of the general interest and in the name of liberalising women's speech, despite the infringement of other people's rights?

The Court of Appeal considered that "the pronouncement of a sentence, even if only civil, would be a disproportionate infringement of freedom of expression and would be likely to have a dissuasive effect on the exercise of this freedom"[3] and the Court of Cassation confirmed this interpretation (II). Finally, in a comparative perspective with Germany, it is important to note that it is the balancing of fundamental rights that prevails and thus, in Germany, the qualification of defamation (III).


I. THE CHARACTERISATION OF DEFAMATION BY THE TRIAL JUDGES


According to Article 29 of the Freedom of Press 1881 Act, 'any allegation or imputation of a fact which is prejudicial to the honour or consideration of the person or body to which the fact is imputed is defamation'. Defamation is a criminal offence, punishable by a fine of up to 45,000 euros.


For defamation to be constituted, five material elements and one moral element must be present:

- An allegation or imputation (1),

- On a specific fact (2),

- Which impugns a person's honour (3)

- Duly identified by the statement (4)

- Made public by the instigator (5)

- And an intention to harm the honour or consideration of the defamed person or body (6).


In a first judgment, Sandra Muller was ordered to pay 15,000 euros in damages, on the basis of the moral prejudice caused by the defamation, and 5,000 euros on the basis of Article 700 of the Code of Civil Procedure (Judgment of 25 September 2019 -Tribunal de Grande Instance de PARIS (17th Chamber) - RG n° 18/00402).


The first instance judges found that there was defamation and sanctioned the defendant. According to them, the two tweets read together gave rise to the idea that Sandra Muller was being harassed at her workplace by E. However, these facts were not substantiated. Indeed, harassment is constituted as soon as repeated behaviour is proven, which undermines dignity because of its degrading and humiliating nature (Article L. 1153-1 of the Labour Code). Consequently, the instigator of the movement was convicted of defamation, since she was unable to provide proof of the facts set out in her tweet.


This point was obviously not challenged on appeal. Indeed, caution is the mother of all virtues and on twitter, one cannot simply accuse. It is necessary to avoid the popular court. The facts denounced are more akin to sexist contempt, as introduced by the Schiappa law of 3 August 2018, than to harassment.


In the second judgement, on 22 January 2020, the trial judges ordered Ariane Fornia to pay Pierre Joxe one symbolic euro in damages. She was also ordered to pay 3,000 euros under Article 700 of the Code of Civil Procedure, to compensate for the procedural costs incurred by the former minister[4].


The Court of Cassation considered that the documents provided by Ariane Fornia were not sufficient to prove the truth of the statements made on her blog. Finally, they refused to exonerate the defendant since "she had to have elements allowing her to support the facts that she denounced publicly".


According to Farid Belacel, "It is by protecting the rights of 'pigs' that we will preserve the freedom of women to accuse them". Article 4 of the 1789 Declaration of the Rights of Man and of the Citizen states that "freedom consists in being able to do everything that does not harm others". It is therefore up to the law to set a framework where victims can express themselves without repercussions for them. Indeed, it would be wise to ensure a #metoo without repercussions, where women can speak out without suffering from defamation actions[5].


II. THE PREVALENCE OF FREEDOM OF EXPRESSION IN THE CONTEXT OF A PUBLIC INTEREST DEBATE


The Supreme court judges, following the opinion of the appeal judges, considered that the two women were acting in good faith and could not be convicted (A). All the more so since the underlying objective is the protection of the public interest (B).


A. Judicial recognition of good faith


On the other hand, although the two Court of Appeal judgments characterised defamation, they retained good faith in both cases. Good faith is a defence to defamation. Under Article 10 of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights (ECtHR), the criteria for good faith are

- Pursuit of a legitimate aim (1),

- No personal animosity (2),

- Seriousness of the investigation (3)

- And caution in expression (4).


However, two of the criteria are particularly lacking: the seriousness of the investigation and the caution in the expression. Indeed, Sandra Muller directly names the "pig" and her comments are not measured, particularly with regard to the characterisation of sexual harassment, as defined by the Labour Code.


Moreover, Ariane Fornia's testimony was erroneous, there were many errors such as the name of the opera played, the fact that there was an intermission, the singer's vocalisations in the second act, the change of seat at the intermission, the arrival of Mr Besson at the intermission...


However the judges of the Court of Appeal have twice recognised the prevalence of good faith in the name of the general interest. The notion of general interest derives from the interpretation of Article 10 ECHR as interpreted by the ECtHR. It can be defined as "matters which affect the public to such an extent that the public may legitimately take an interest in them, or which arouse its attention or give rise to substantial concern, in particular because they concern the well-being of citizens or the life of the community. This is also the case for issues that are likely to create a great deal of controversy, that concern an important social theme, or that relate to a problem about which the public would benefit from being informed"[6].


In the present case, the comments made by the defendants were made in the context of the WEINSTEIN case and the denunciations that followed on the networks, particularly under the #metoo, #myharveyweinsteim and #balancetonporc banners. It is a social movement that has encouraged women to speak out and has made it possible to denounce all types of sexual violence, ranging from gravelly questioning to harassment, assault and rape. It therefore constitutes, both for the judges of the court of first instance and for the judges of the Court of Appeal, a movement of general interest that concerns the well-being of citizens and life in society.


B. The existence of a public interest debate


The Court seems, in fact, to be using the concept of a debate of general interest to attenuate the application of the classic criteria of good faith when the remarks are part of that debate.


By condemning the speech of Ms Muller and Ms Fornia, there is a risk of condemning the speech of all women, and this risk cannot be taken. This movement must be encouraged, but the legal and factual consequences of these decisions are not negligible.


Factually, the case of Eric Brion is a perfect example. As a result of Sandra Muller's tweet, this man experienced social stigma, lost his job and claims to have suffered from a depressive disorder.


Legally, these decisions create legal uncertainty. Indeed, the interpretation of the notion of general interest as defined by the ECtHR leads to the de facto exclusion of the application of defamation law. To exclude the application of the law requires explanations to be provided, explanations that are sorely lacking in the judgments of the Court of Appeal judges.


III. And in Germany?


In Germany, the courts consider that one has the right to freedom of opinion and expression according to the provisions of Article 5 of the German Basic Law. This right has to be balanced against the right to protection of the personality provided by the same Basic Law in Articles 1 and 2. As the issue in such cases is not the expression of an opinion but the reporting of facts, case law requires proof of the facts in question. Sworn statements play a fundamental role in summary proceedings, as they make it possible to render the unfounded nature of the reproaches published by a person online "plausible". This 'plausibility' is sufficient in the emergency procedure, but afterwards the court hears the parties to try to discern the truth.


If a photograph is published together with the messages on the web, the protection of the applicant is even stronger. The publication of an image of a person is in principle only possible with his or her permission under § 22 KUG, unless the dissemination of the photograph in question is in the interest of information. Here again, a balancing of the interests of the person depicted on the one hand and those of the need for information and freedom of opinion on the other is made. For the purpose of this interpretation, the text accompanying the reproduction of the image of the person is taken into account. In general, it is the protection of the personality and image of the person depicted that takes precedence over freedom of expression, in the absence of proven facts.


According to Cédric Michalski, there is a factual criterion for determining the presence of general interest. There are several categories that come up consistently, where the ECtHR has given precedence to freedom of expression and the general interest over the freedom of others[8] :

- Political debates ;

- Debates on the regalian functions of the state, including legal power;

- Public health issues ;

- The quality of the persons to whom the information relates ;

- And a "social" or "heterogeneous" category, which concerns both doping in sport[9] and seal hunting[10].


Finally, a last question arises: are these individual cases linked to the public personality of the women involved? Will the good faith exception be applied to all women, even the most unknown, who denounce the attacks of which they are victims?


[1] Court of Appeal of Paris, 31 March 2021, n° 19/19081

[2] Paris Court of Appeal, 14 April 2021, No. 20/02248

[3] DELÉAN Michel, "La condamnation de Denis Baupin pour procédure abusive est définitive" in MEDIAPART, Published on 30 April 2019

[4] Judgment of 22 January 2020 -TJ excluding JAF, JEX, JLD, J.EXPRO, JCP de PARIS - RG n° 18/01226

[5] BELACEL Farid, "It is by protecting the rights of 'pigs' that we will preserve the freedom of women to accuse them" in le MONDE, Published on 28 June 2018

[6] ECHR, 10 Nov. 2015, Couderc and Hachette Filipacchi associés v France [GC], no 40454/07, § 103

[7] N. DROIN. "Defamation and public interest debate: good faith bends, but does not break" Recueil Dalloz 2015 p.931

[8] C. Michalski, "Liberté d'expression et débat d'intérêt général", AJ Pénal 2013. 19

[9] ECHR, sect. I, 7 May 2002, no. 46311/99, McVicar v. United Kingdom, § 82

[10] ECHR, Gde ch. No. 21980/93, Bladet Tromsø and Stensaas v. Norway, 20 May 1999


Marie-Avril Roux Steinkühler & Atalante Gabelli


Do you have questions about German or French libel law? MARS-IP assists companies and individuals in the defence of their image, brands, ideas and intellectual productions in Germany, France and internationally. Please contact us.


Photo by Mihai Surdu on Unsplash


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