France’s Law of July 29, 1881 on the Freedom of the Press establishes the following “delicts”, or criminal wrongs.
Defamation (diffamation), defined as any allegation or accusation of a fact that causes an attack on the honour or consideration of a person. When directed at private persons, defamation is punishable with a fine of €12,000 (Art. 32).
Insult (injure), defined as “any offensive expression, scornful word, or invective that does not contain the accusation of a fact”. The penalty is a fine of €12,000 (Art. 33).
The French Criminal Code also establishes two related “contraventions”, or petty offences, related to private acts. Art. R621-1 punishes “non-public defamation toward a person” with a of the first degree. Art. R621-2 also punishes “unprovoked” non-public insult toward a person” with a fine of the first degree.
Criminal Defamation of Public Officials
Provisions on the books.
When criminal defamation is committed against public officials, the maximum fine increases to €45,000. The list of officials includes the French president, ministers, legislators, and ministers of religions subsidised by the state (Law of July 29, 1881 on the Freedom of the Press Arts. 30-31).
In addition, the French Criminal Code punishes non-public grave insult (outrage) in the form of words, gestures, threats, writings or images of any kind against a person invested with a public-service mission with a fine of up to €7,500. In certain, specific cases outlined by the law, outrage may also be punished with imprisonment of up to one year.
Criminal Defamation of the Head of State
In 2013, France abolished Art. 26 of the Law of July 29, 1881 on the Freedom of the Press, which had criminalised offence toward the French president. However, it should be noted that, at the same time, the French president was added to the list of public officials receiving increased protection from defamation (see under “Criminal Defamation of Public Officials”).
Criminal Defamation of the State and its Symbols
Provisions on the books.
Art. 433-5-1 of the French Criminal Code punishes outrage (grave insult) of the national anthem or tricolour flag “at a demonstration organised or regulated by the public authorities” with a fine of €7,500 and six months in prison if “committed as a group action”.
Criminal Defamation of Foreign States and Symbols
Provisions on the books.
Insult (outrage) committed against ambassadors or other official representatives of foreign countries in France is punishable with a fine of up to €45,000 ( Law of July 29, 1881 on the Freedom of the Press Art. 37).
Criminal Defamation of the Deceased
Art. 34 of the Law of July 29, 1881 on the Freedom of the Press states that no charges can be brought for defamation or insult against the dead unless the offender “intended to attack the honour or the consideration of their descendents, spouses, or legal heirs”.
Provisions on the books.
Blasphemy is not a criminal offence in France except in the region of Alsace-Moselle (départments Haut-Rhin, Bas-Rhin, and Moselle), owing to the preservation of laws enacted when the region was under German control. Art. 166 of the (droit local) provides that whoever commits “public blasphemy against God” or “publicly offended one of the Christian religions” or other established religious community shall be punished with up to three years in prison.
Other Relevant Offences
Under Art. 32 of the Law on Freedom of the Press, defamation directed against a class of people based on their race, ethnicity, religion, sex, sexual orientation or handicap is punishable by one year in prison and/or a fine of €45,000; in the case of insult, the punishment is six months in prison and a fine of €22,500.
Public prosecution can normally only be undertaken upon request of the offended party. The only exception to this is defamation based on group characteristic, which may be undertaken at the prosecutor’s own initiative (Art. 48). All complainants also have the right to initiate a private criminal prosecution. The Constitutional Council recently this right to public bodies and members of government.
Statistics on Application
In general, civil actions for defamation are brought under the Law of July 29, 1881 on the Freedom of the Press.
Art. 1382 of the French provides that any person who causes damage to another person is obligated to repair that damage. Although plaintiffs in defamation cases have invoked the article in the past, the Court of Cassation that “the abuses of freedom of expression foreseen and punished under the Law of July 29, 1881 cannot be addressed on the basis of Article 1382 of the Civil Code”. French jurists examining Art. 1382 in the context of defamation actions traditionally have considered the provision to be too vague and to not offer the necessary procedural safeguards for freedom of expression that would ensure compliance with Article 10 of the European Convention on Human Rights and related rulings by the European Court of Human Rights (ECtHR).
There are no caps on non-pecuniary damages for defamation in French law.
Defences for civil damages are subject to those established for offences under the Law of 1881, when civil cases are brought under that law.
Truth: According to Art. 35 of the Law on the Freedom of the Press, truth is always a defence except if the defamatory assertion concerns a person’s private life. This stipulation also applies to the penal code contraventions. The burden of proof in establishing truth falls to the accused.
Privileged reporting: The press cannot be held liable for accurate reporting on public hearings or inquiries of the National Assembly or the Senate, or on court proceedings (Art. 41).
Media Cases and Case Law
In order to be considered defamatory by French courts, an expression must generally fulfil the following criteria:
- It must be made publicly;
- It must contain the allegation or imputation of a fact (fait);
- It must affect a person’s honour or esteem;
- It must be directed at an identifiable moral or legal person; and
- It must have been made in bad faith.
With respect to criterion (5), it is important to note that French jurisprudence assumes that all defamatory statements are made in bad faith (i.e., with malice) unless proven otherwise by the author of the statement.
Separation of fact and value
Over time, the jurisprudence of the Court of Cassation has narrowed this definition, particularly with respect to the “allegation of a fact”. In particular, the Court has that in order for a statement to be defamatory it must contain the accusation of a “precise” or “defined” fact, further defined as a one that can be subject to proof of truth or to debate. Any expressions not subject to such proof (i.e. feelings or value judgments) are only actionable as insult.
In 2010, for example, the Court acquitted a rapper of defaming a public authority over critical comments directed at France’s Interior Ministry in a 2002 flyer accompanying the rapper’s then-latest album. The comments concerned generalised accusations of police abuse; one read: “The reports of the Interior Ministry will never take stock of the hundreds of our brothers struck down by the police force without any of the assassins ever being bothered”. The charges were signed off by then-Interior Minister and presidential candidate Nicholas Sarkozy. The Court that the rapper’s comments did not contain the imputation of a “precise fact” and thus “although they have an insulting character do not constitute the crime of defamation”.
In another notable ruling, the Court held in 2013 that the same statement could not be held liable for both defamation and insult. Due to the distinction between the two offences, the Court that applying them to the same content created a “detrimental uncertainty” for defendants when preparing a defence.
Defence of reasonable publication (good faith)
The only defence for defamation allowed by the Law of July 29, 1881 on the Freedom of the Press. is truth, which is always applicable except when concerning a person’s private life. However, French jurisprudence has generally also recognised a defence of good faith, as long as the assertion in question:
(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.
In French case law, the defence of good faith has been modified as the courts have come under the influence of the ECtHR. In 2006, the Paris court of appeals convicted an editor and a journalist at the magazine Paris Match of criminal defamation after printing an interview with a former insurance executive, François Marland, who implicated another businessman, Jean-François Henin, in a Franco-Californian insurance fraud scandal known as the Executive Life affair. Marland was convicted along with the two journalists. The appeals court ruled that the three defendants could not plead justification because Marland’s revelations appeared objectively motivated by a desire for revenge, thus failing the malice stage of the test.
The parties appealed the verdict to the Criminal Chamber of the French Court of Cassation, arguing, among other things, that the public’s right to know (the “legitimate aim” in this case) supported the publication of the article in question, even if “the witness [Marland] implicated a third person in a fraudulent financial transaction for personal reasons”. In 2008, the Court of Cassation reversed the verdict, ruling that the appeals court had failed to take into account the totality of circumstances surrounding the publication. “Considering that the incriminating article concerns a subject of general interest relating to a fraudulent transaction by a banking arm of a foreign insurance company in which the French state had a financial interest”, the publication “did not overstep the limits of free expression in the sense of Article 10 of the European Convention on Human Rights”.
In 2011, the Court of Cassation further strengthened the defence of good faith by that a serious investigative article could not be denied the benefit of that defence regardless of whether its presentation was “prudent and measured”.
The case concerned a book, Révélation$, written by French journalist Denis Robert and Ernest Backes, that alleged serious criminal activity, including money laundering, on the part of Clearstream, a Luxembourg-based bank. Luxembourg investigators cleared the bank of wrongdoing and Clearstream filed a civil suit for defamation against Robert and Backes, as well as against the book’s editor and its publisher (Edition des Arènes). In 2008, the Paris Court of Appeal ruled in favour of Clearstream, finding that although the authors had pursued a legitimate aim, they could not receive the benefit of good faith because they “did not observe necessary prudence and measure in the expression”.
The Court of Cassation overturned the verdict, ruling: “In deciding thusly, [even] when the general interest of the subject and the serious nature of the enquiry, led by an investigative journalist, authorised the sentiments and the legal allegations [in the book], the court of appeal violated [Article 10 of the European Convention on Human Rights] and [Article 29 of the Law of 1881].”
Recent Legal Changes
French defamation law has undergone some notable changes over the past 15 years, much of which was prompted by rulings of the European Court of Human Rights (ECtHR).
Nearly all prison sentences for defamation and insult were removed in 2000; only defamation and insult on account of race or other group characteristic remain punishable with imprisonment (one year and six months, respectively) (Arts. 32-33 of the Law of July 29, 1881 on the Freedom of the Press).
In 2013, the ECtHR that France had violated Art. 10 of the European Convention on Human Rights after a French citizen was fined €30 for violating Art. 26 of the Law on Freedom of the Press, which prohibits offence toward the French president. The defendant, Hervé Eon, was convicted for holding up a sign reading “Get lost, you prat” during a visit by then-President Nicholas Sarkozy – an allusion to Sarkozy’s use of a similar phrase when confronted by a man who refused to shake Sarkozy’s hand. The Court found that prosecutions under Art. 26 were “likely to have a chilling effect on satirical forms of expression relating to topical issues”. The article was abolished in 2013 in a move widely reported to have decriminalised insult toward the French president. However, the Law on Freedom of the Press was in fact modified to include the French president in the list of public officials receiving increased protection from defamation under Arts. 30-31.
In 2011, France’s Constitutional Council (Conseil constitutionnel) that an exception to the defence of truth contained in the Law on Freedom of the Press for matters more than 10 years old was unconstitutional. In 2013, the Constitutional Council another exception to the defence of truth, for matters relating to a person’s pardoned or expunged criminal record. The Council’s decision followed a 2007 Council of Europe Parliamentary Resolution in which France was specifically urged to modify its truth defence.
Notes and Acknowledgements
Information on defamation laws in Europe was collected by the International Press Institute (IPI) in collaboration with the School of Public Policy’s Center for Media, Data and Society at Central European University in Budapest and their partners at the SHARE Foundation in Belgrade. (Read more about our partners here.)
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at ipi[at]freemedia.at.
Information on France was last updated in January 2015.