The firm of Maître BRAUN is commonly involved in press law. The latter can be defined restrictively as the regime resulting from the Law of July 29, 1881 on the Press, or more broadly as all the rules governing communication and publications.
Defamation
The offense of defamation is defined by article 29 of the Law of July 29, 1881 as « any allegation or imputation of a fact which is prejudicial to the honor or consideration of the person or body to which the fact is imputed».
Public defamation is an offense when the defamatory remarks are made to several persons not linked by a community of interest. On the other hand, non-public defamation is a simple contravention, constituted when the defamatory remarks are made to a single person, or to several persons linked by a community of interest.
Defamation on the Internet is essentially governed by the same principles as defamation by a traditional means of communication. For example, an open-access website is public, while an email addressed to a single person is private.
Defamation can be media-related,but can also take place at work, in a company, etc…
Bringing an action for defamation, or defending against it
The victim wishing to file a complaint for defamation is subject to the very technical rules of press law (shortened statute of limitations, obligation to precisely articulate the complaint, absence of subsequent recharacterization of the facts, need for election of domicile, etc.). It is therefore essential to seek the advice of a lawyer qualified in the field..
The means of defense are also specialized: search for procedural nullities, exception of truth (or exceptio veritatis), which supposes an offer of proof in due form, good faith (which, in press law, meets specific criteria.)
Defamation and slander
Defamation and slander are distinct offenses.
Slanderous denunciation is provided for and punished by article 226-10 of the Penal Code. This incrimination punishes the fact of :
- Denouncing a fact likely to lead to judicial, administrative or disciplinary sanctions,
- hen it is known that this denunciation is totally or partially inaccurate,,
- The slanderous remarks having been made to the police services, the hierarchical superiors or the or the employer of the person denounced, or any authority having the power to follow up or to refer to the competent authority.
The constituent elements of slanderous denunciation are therefore much more restrictive than those of defamation.
It is more severely punished. Procedurally, the proceedings are not subject to the rules of press law. The judicial strategies to be followed are therefore completely different. From every point of view, « defamation » and « slanderous denunciation » are not synonyms, contrary to what is sometimes heard.
The insult
Insult is constituted by any insulting expression, term of contempt or invective. It differs from defamation in that it does not contain the imputation of any fact. In other words, according to the jurisprudence, it does not designate any precise fact likely to be, without difficulty, the object of a proof or of an adversarial debate.
Like defamation, insult is an offense or a contravention depending on whether it is public or not.
The right to privacy and the right to an image
Violations of privacy and the right to one’s own image constitute offenses, on the basis of articles 226-1 and 226-2 of the Criminal Code, when they are constituted by :
- The capture, recording or transmission, without the consent of the person concerned, of words spoken in private or confidential, or of the image of a person in a private place,
- The conservation, use, or making known to the public or to a third party or allowing the recordings or documents thus obtained to be made known to the public or to a third party.
Apart from these specific hypotheses, violations of privacy or image rights are punished by prohibition measures and damages on the basis of Article 9 of the Civil Code.
Some examples of cases handled by BRAUN in the field of communication law:
- Obtaining the suspension of the broadcasting of a program called Faites entrer l’accusé (Bring in the accused) which violated the presumption of innocence of the client,
- Obtained, by sending formal notices, the withdrawal of podcasts of a radio program defaming a client by imputing criminal facts,
- Obtained the condemnation of a sports agent who continued to use the image of one of his former clients, an international footballer, to pay the latter the sum of 30,000 Euros (20,000 Euros for his prejudice, 10,000 Euros for his legal costs),
- Obtained the first conviction by the French courts against racist remarks specifically targeting the Asian community
- Obtained the condemnation of several « people » newspapers and Internet sites, having reproduced the image of a citizen and having lent him a sentimental relationship with a celebrity, to pay him the sum of 25.800 Euros in total.