In France, judicial evolution in defamation cases protects work of civil society Robust interpretation of good-faith defence thwarts wave of claims brought by Equatorial Guinea elites

by International Press Institute | Sep 25, 2014 | France, News |

 France’s President Francois Hollande (L) greets Equatorial Guinea’s President Teodoro Obiang Nguema Mbasogo in the courtyard of the Elysee Palace at the start of the Elysee Summit for Peace and Security in Africa, in Paris, December 6, 2013. REUTERS/Benoit Tessier 

 

Note: This is part of our series Notes from the Field: EU Defamation Laws and Journalism.

“Flabbergasting”. It was the only word one French police agent could find to describe the riches seized in a Feb. 2012 raid on an €80 million Paris apartment belonging to Teodorin Obiang (Jr.), son of Equatorial Guinea’s long-serving dictator. Millions (upon millions) of euros worth of wine, art, and furniture—all, according to the French NGOs that had been scrutinising the Obiangs for years, funded through embezzlement of the country’s oil wealth.

In 2008, one of those NGOs, Transparency International (TI) France, had filed a pioneering lawsuit in the French courts against the Obiang family and close associates for “misappropriation of public funds”. After a two-year legal wrangle, France’s Court of Cassation deemed the suit admissible, green-lighting an official investigation into the Obiangs’ Paris holdings. A series of spectacular operations followed between 2011 and 2012—in one, police netted nine ultra-luxury cars that later fetched €3.2 million at auction—marking the public apogee of what became known in France as the biens mal acquis (ill-gotten gains) affair.

But the oil-rich West African state’s first family did not take the accusations lying down, and proceeded to launch a legal offensive of its own. Their chosen weapon? Defamation claims targeting the NGOs involved as well as media outlets that reported on the scandal.

This month, that offensive appeared to come full circle after a Paris court published its decision, first announced in June, tossing out the Obiangs’ libel suit against TI France itself. The ruling marks a symbolic turning point in what has been described as a coordinated effort to silence the unflattering portrayal of Equatorial Guinea’s government by French civil society.

The outcomes in these cases speak to the evolution of the good-faith defence in French defamation jurisprudence; more broadly, they reinforce the need to ensure that European courts robustly defend the right of the media and civil society alike to comment on issues of global public importance.

Taking a stand for activism

Unsurprisingly, perhaps, the Obiang family’s first target was the French charity Catholic Committee against Hunger and for Development (CCFD, Comité catholique contre la faim et pour le développement). After all, it was CCFD that had broke open the biens mal acquis scandal by means of a 2007 study in which it alleged that developing-world government leaders, including Teodoro Obiang (Sr.) had stolen over $US 100 billion in public money in previous decades. In 2009, CCFD issued a follow-up report, entitled “Ill-gotten gains: Who profits from crime?” (“Biens mal acquis: à qui profite le crime?”). The report’s authors dedicated a chapter to Equatorial Guinea, in which the Obiangs’ “authoritarian regime” was alleged to have acquired its estimated $700 million fortune by siphoning off the country’s oil revenue. The chapter also included accusations of money laundering via real estate in France and Spain. CCFD’s cited an array of sources to support its claims, including, among others, academic studies, numerous investigative reports by NGOs and media outlets, and the results of a 2004 corruption inquiry by the United States Senate.

In response, Obiang Sr. sued CCFD for defamation in criminal court, requesting that the relevant passages be stricken from public view and that the charity be forced to run a court order on its home page entitled “CCFD Convicted” for a minimum of 90 days. Equatorial Guinea’s president also demanded symbolic damages in the amount of €1 (a common request in French libel cases).

At court, CCFD did not seek to prove its accusations; rather, it argued that it had published the impugned material in good faith. In a Sept. 2011 ruling, a copy of which was obtained by IPI, the Paris Court of First Instance (Tribunal de Grande Instance) agreed. Significantly, the court determined that the criteria for evaluating good-faith reporting were to be less strictly applied when the speaker is not a professional journalist, and that “even more tolerance” is required when evaluating expressions made by activist groups. On the basis of this flexible understanding, the court ruled that CCFD’s reliance on trustworthy and well-documented sources sufficiently met the demand of a “serious investigation”, even if the organisation—as stressed by Obiang Sr.’s lawyers—had done no independent research of its own.

In April 2013, an appeals court upheld the decision in favour of CCFD. But by that time, the Obiangs had already set their sights on another civil-society target: TI France, the group behind the original anti-corruption lawsuit. Two days after the Feb. 2012 raid, Daniel Lebègue, TI France’s president, stated in an interview with Le Parisien that the Obiang family “amassed a private fortune in France … through misappropriations of the Equatoguinean public treasury”. The comments provided the Obiang family enough ammunition to launch a criminal libel complaint against Lebègue as well as Le Parisien’s publisher, Marie Odile Kuhn. Gone, apparently, were the days of symbolic damages: in contrast to the CCFD case, this time a lawyer for Teodorin Obiang (Jr.) demanded €50,000 in damages plus the publication of the court’s judgment in several major French newspapers.

Like CCFD, Lebègue pled good faith. In this month’s ruling, the Paris Court of First Instance again quashed the defamation claim, and reemphasised that the test for good faith had to be adapted to the particular circumstances. As a civil-society activist manifestly “engaged in the defence of a cause” and “himself involved in the events” reflected upon, Lebègue could not be expected to speak with “complete objectivity” and must be free to adopt an “intensified tone”. In this light, the court said, Lebègue’s comments were sufficiently grounded in fact and not punishable, even if they were expressed as factual statements not accompanied by “invoices” proving the alleged embezzlement. (As for Kuhn, the court wasted little time confirming that it had been “perfectly legitimate” for Le Parisien to seek Lebègue’s viewpoint, while further noting that the questions had been neutral and the answers faithfully transcribed.)

France’ good-faith defence: Now something to believe in

Both CCFD and TI France were represented by William Bourdon, a well-known human-rights lawyer who is also the founder of the Paris-based anti-corruption NGO Sherpa. In comments made to IPI, Bourdon said that the pair of rulings “perfectly illustrate a dynamic of French case law that is more and more protective of freedom of expression”.

French statutory defamation law (the Law of July 29, 1881 on the Freedom of the Press) is not especially generous in terms of the defences offered to those accused of defamation. Indeed, the only defence provided for is truth, although even this is not absolute: factual statements related to a person’s private life are not eligible. Moreover, only recently (in 2011 and 2013, respectively) did France’s Constitutional Council throw out two further exceptions, concerning references to matters more than 10 years old or to a person’s pardoned or expunged criminal record.

Although it is thus not formally recognised in the Law on the Freedom of the Press, a plea of good faith will also be accepted by the French courts under certain conditions. According to traditional French jurisprudence, a statement is eligible for this defence if it: (i) pursues a legitimate aim; (ii) is not driven by animosity or malice; (iii) is prudent and measured in presentation; and (iv) is backed by a serious investigation that dutifully sought to ascertain the truth of the statement.

However, these criteria have been loosened in recent years to provide increased protection for freedom of expression, in part due to the influence of European human-rights principles. In 2006, for example, the French Court of Cassation ruled that a magazine that had published an interview on a subject of clear public importance—in that case, a well-publicised insurance-fraud scandal known as the Executive Life Affair—could not be denied the benefit of good faith simply because the interview subject was motivated by revenge. In a key decision from 2011, the Court of Cassation confirmed that two investigative journalists who had conducted a “serious” inquiry into alleged criminal activity by a bank qualified for good faith even if their form of presentation “did not observe necessary prudence and measure”. In both decisions, the Court of Cassation indicated that applying an overly burdensome interpretation of the good-faith defence to public-interest reporting violated Article 10 of the European Convention of Human Rights.

This progression in favour of viewing a statement according to its complete context was in clear view in the CCFD and TI France rulings. To wit, the Court of First Instance properly recognised that inflexibility in judging good-faith claims risked chilling civil-society speech on an issue of international public concern, namely, “the disparity between the wealth of certain African leaders and the poverty of [their] respective people”. Bourdon further lauded what he viewed as the judges’ implicit acceptance of “sincerity”, be it “the sincerity of an emotion, an indignation, [or] a position”, as a criterion in good-faith cases.

“All of this,” he concluded, “echoes with the decisions of the ECHR and, more generally, with a worldwide movement, which, more than ever, makes freedom of expression the mother of all freedoms.”

Outlier verdict follows court venue change

Despite the court victory, the defamation charges strained TI France’s resources. Marina Yung, TI France’s legal director, told IPI that the organisation, run by a staff of six, did not have the funds to pay for a lawyer. Instead, Bourdon agreed to represent them pro bono. “If we didn’t have William, we could not have done this,” Yung said, observing that the Obiang family, in contrast, had “unlimited means to pay for lawyers to appeal”.

In Yung’s view, the Obiangs and their lawyers probably did not believe that they would actually win the case. Their strategy, she explained, was instead to “exhaust” the organisation’s resources: “They know that [the case] takes [us] a lot of time, is complicated, that we need to gather proof”.

Vincent Hugeux, an editor at the weekly magazine L’Express, offered a different take on the Obiangs’ motivations. Hugeux, too, was sued by Teodorin Obiang (Jr.) for defamation over a 2012 article he co-authored on French and American investigations into Obiang Jr.’s lavish lifestyle. Again the defence pled good faith, and again the court, in July 2014 agreed: Hugeux and fellow reporter Anne Vidalie had displayed no animosity or imprudence in “diligently researching” a question of public interest.

Speaking to Radio France International following the court’s ruling, Hugeux agreed that the Obiangs did not expect to win. He reasoned, however, that “[i]f they win only one case out of 15 or 20, it’s enough, because they can live on that and their propaganda will use it every morning and every night … that’s probably the rationale behind this obsessive behaviour towards the free press.”

Despite the procession of unfavourable verdicts, the Obiang family has, in fact, managed to win one conviction. In March 2014, an editor and two journalists at Paris Match were sentenced to pay criminal fines (€1,000 and €1,500 each, respectively) as well as €1 in symbolic damages to Teodorin Obiang (Jr.) and €2,000 to cover the latter’s legal costs. The charges related to a 2012 article in which the magazine reported that Obiang Jr. had been indicted on drug trafficking charges in the United States but that the scandal had been “quickly snuffed out” (“mais le scandale est vite étouffé”). The conviction was restricted to that single sentence, reportedly because it was based on a rumour; other impugned phrases in the article were deemed not to be libellous.

Marie-Christine de Percin, the attorney who represented Paris Match, told IPI in an interview that the verdict was the result of an unusual set of circumstances. Within the Paris Court of First Instance, she explained, defamation cases are usually handled by the 17th chamber, which specialises in matters related to the media (the proceedings against CCFD, TI France, andL’Express, for example, all took place in the 17th chamber). However, the claim against Paris Matchwas heard by the 13th chamber. The reason for the venue change, according to Percin, was that the Paris Match case had been bundled together with yet another defamation suit launched by the Obiangs, this time against Bourdon himself for comments published in the magazine. Because Bourdon was a frequent litigator before the 17th chamber, the judges there opted not to hear the matter.

The 13th chamber threw out the charges against Bourdon, and even ordered Obiang Jr. to pay him €2,000 in damages for abuse of process. Paris Match was not as fortunate, despite the fact that, as Percin recounted, a prosecutor (procureur) from the 17th chamber argued against a conviction in what the prosecutor described as a “pure case of free expression”.

Nevertheless, Percin said that she did not expect the apparently outlier ruling to chill reporting on the Obiang family’s wealth or similar matters, given a widespread perception that the 13th was “not experienced” in defamation cases. “Everyone knows that it is not a good decision,” she affirmed, underscoring that “the important thing is that the condemnation was only because of two words … [the Obiangs] lost for all other terms in the article.”

French defamation law in global context

In a wider sense, protecting international civil society’s ability to freely report on Equatorial Guinea—to take just one example—becomes all the more important given that domestic criticism is considered to be effectively nonexistent.

Human Rights Watch’s World Report 2014 concluded that freedom of association and assembly were “severely curtailed” in Equatorial Guinea, where “the few local activists who seek to address human rights related issues face intimidation, harassment, and reprisals”. Press freedom is equally restricted: according to the report, “local journalists are unable to criticize the government or address issues the authorities disapprove of without risk of censorship of reprisal”. In this sense, the burden of investigating, say,  the gap between the country’s high GDP per capita (as high as 29th in the world, above former colonial power Spain, in some estimates) and low Human Development Index rating (currently 144th) falls largely to those living abroad.

The wave of defamation cases related to the biens mal acquis affair thus supports the notion that while properly balanced libel laws in the European Union clearly benefit democracy and accountability at home, they can also do so abroad, namely, by providing a safe outlet for information that might otherwise remain suppressed.

Had the Obiangs been successful in their suits, and had the Parisian courts not issued such strong statements in favour of good-faith campaigning, it is certainly conceivable that a chilling effect would by now have settled in among French media and civil society covering the alleged corruption in Equatorial Guinea. That would have both undermined efforts to encourage transparency in Malabo, and undercut France and the EU’s reputation as global press-freedom leaders.

Published on Sept. 25, 2014.