Case Summary and Outcome

The Fourth Section of the European Court of Human Rights (ECtHR) unanimously held that the criminal conviction for defamation imposed by the French national courts on the applicant for having made accusations of sexual harassment and assault suffered in her workplace, violated her right to freedom of expression, protected under Article 10 of the European Convention of Human Rights (ECHR). The case arose after the applicant, Ms. Allée, a secretary in a Denominational Teaching Association, sent an email to 6 persons claiming to be a victim of moral and sexual harassment at her workplace, as well as a victim of sexual assault perpetrated by Mr. A. The ECtHR considered that the French judicial authorities failed to strike the right balance between the right to freedom of expression and the limitations imposed on it by not adapting the notion of factual basis and the criteria of good faith to the case. The Court highlighted that the email was not intended for public dissemination, that the applicant acted in her capacity as an alleged victim reporting statements of facts, that the email was only sent to a limited number of persons, and that the conviction, by its criminal nature, had a chilling effect which could discourage other victims of similar actions from reporting.

 

 

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Facts

In July 2015, Ms. Vanessa Allée (the applicant or Ms. Allée) was employed by a Denominational Teaching Association (the Association) as a secretary. Among other people, Ms. Allée collaborated with Mr. A., executive vice-president of the Association. During the same time, Ms. Allée stated that she was a victim of moral and sexual harassment, as well as a victim of sexual assault by Mr. A. These allegations were presented to Mr. Ar., son of Mr. A. and spiritual director of the Association. On Mr. Ar.’s suggestion, Ms. Allée kept her distance from Mr. A., until the harassment resumed in the summer of 2016.

Between June 1 and June 2, 2016, both Ms. Allée and her husband, Mr. B., informed Mr. Ar. about the continuing harassment, in relation to which Mr. B. sent several SMS messages to Mr. Ar., describing the harassment and the aggressions suffered by Ms. Allée. As a result, Mr. Ar. proposed that Ms. Allée take leave to allow time either to identify an alternative position within the Association or to reach a mutually agreed termination of the employment relationship.

On June 7, 2016, Ms. Allée sent an email entitled “sexual assault, sexual and moral harassment” [para. 8], addressed to the general manager of the Association, as well as to the labor inspector, Mr. A., Mr. Ar., Mr. B., and another son of Mr. A., who was not employed by the Association. In said email, Ms. Allée raised, mainly, the following points: (i) she denounced the behavior of Mr. A.; (ii) she informed that she had contacted a labor inspector, included in the email, to be informed of her rights; (iii) that she had evidence of the moral and sexual harassment she had suffered at the Association; (iv) that, as a victim of sexual abuse, she would file a legal complaint before the Public Prosecutor; and (v) that she requested a meeting to sign an agreement for the mutual termination of the employment relationship.

Subsequently, on June 24, 2016, Mr. B. made a post on an acquaintance’s Facebook profile wall reiterating the applicant’s allegations and describing them as a ‘’sex scandal.’’ [para. 10] In these allegations, he quoted directly those involved and the Association, which provoked violent comments on the part of other users and responses from Mr. B. qualifying the facts as “rape and qualifying Mr. A. as a sexual predator.” [para. 10]

In response to these two incidents, on August 1, 2016, Mr. A. served Ms. Allée and Mr. B. with a summons to appear before the Criminal Court of Paris (the Criminal Court), accusing them of public defamation. In this regard, Ms. Allée explained in her conclusions the following: (i) that she had been a victim of harassment on repeated occasions, during 2015 and 2016; (ii) that the email, which was the subject of the litigation, was not of a public nature; and (iii) that she could invoke on her behalf the protections of French labor law, which allow employees to report offenses of which they are victims or witnesses, without fear of suffering any penalty or unjustified dismissal.

On January 16, 2018, the Criminal Court found Ms. Allée and Mr. B. guilty of public defamation. According to the Criminal Court, on the basis of Articles 23, 29(1), 31, 41, and 55 of the French Law of July 29, 1881 on freedom of the press, a statement can be defined as public by the fact that it is communicated to individuals outside a community of interest, regardless of whether it is communicated to a single person. The Criminal Court goes on to say that proof of the public nature of Ms. Allée’s declarations is that the email was also sent to her husband, the labor inspector, and Mr. A.’s second son, who did not have management functions in the Association.

Therefore, the Criminal Court considered the email as defamatory and clarified that Ms. Allée had not provided sufficient evidence to prove all her allegations and had not successfully invoked the good faith exception. In connection with the last consideration, the Criminal Court found that the conditions for invoking this exemption were not met, which apply when “is characterized by the legitimacy of the purpose pursued, the absence of personal animus, prudence and restraint in expression and compliance with the duty of prior investigation”, as noted by the ECtHR in Prompt c. France (2015). [para. 26] Accordingly, the Criminal Court ordered Ms. Allée to pay a suspended fine of EUR 1,000, the token sum of EUR 1, and to pay jointly with her husband the sum of EUR 2,000 for the costs of the proceedings.

On November 21, 2018, by judgment of the Paris Court of Appeal (the Paris Court), the conviction for defamation was partially confirmed. First, the Paris Court maintained the previously explained character of publicity of Ms. Allée’s statements. Secondly, the Paris Court explained that the facts attributed to Mr. A. are sufficiently precise and detailed to be able to injure his honor and require proof of veracity. In this regard, this court explained that, regarding the excuse of good faith, it is true that Ms. Allée was pursuing a legitimate purpose in denouncing incidents of which she claimed to be a victim and, as such, Ms. Allée cannot be reproached for the fact that she wanted to make a complaint.

However, while there were elements supporting the allegations of moral harassment, including sexual harassment, there was insufficient evidence to establish the alleged sexual assault in 2015. In particular, Ms. Allée did not pursue legal action or provide supporting evidence, precluding her from relying on the defense of good faith. [para. 17] Based on this analysis, the Paris Court reduced the suspended fine to the sum of EUR 500 and ordered the payment, jointly with Mr. B., of a total sum of EUR 2,000 for the costs of the legal proceedings.

Consequently, Ms. Allée appealed to the French Court of Cassation. During this stage, the prosecutor stated that the only question to be analyzed was whether, in the circumstances of the case, the good faith criteria should be relaxed to avoid reaching, as in the two previous decisions, a conclusion of insufficient factual basis or insufficient valid basis to prove all the facts alleged by Ms. Allée, thereby imposing on her an excessive burden of proof.

On November 26, 2016, the French Court of Cassation rejected Ms. Allée’s appeal on the grounds that the Paris Court of Appeal had duly justified its decision as to the lack of factual basis to prove the veracity of the alleged sexual assault allegations. Ms. Allée, therefore, could not benefit from the good faith exception. For these reasons, the French Court of Cassation ordered Ms. Allée to pay Mr. A. the sum of EUR 2,500 for the costs of the cassation proceedings.

As a result, on May 19, 2020, Ms. Allée filed an application against France before the European Court of Human Rights, claiming that the criminal conviction violated her right to freedom of expression under Article 10 of the European Convention on Human Rights.

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Decision Overview

The Fifth Section of the European Court of Human Rights delivered a unanimous decision. The main issue brought before the ECtHR was whether the criminal defamation conviction was a disproportionate sanction that violated the applicant’s right to freedom of expression.

The applicant stated, first, that the style and intent of her email were fair and prudent. She goes on to say that she was seeking to denounce criminal acts of which she was a victim, to protect herself from Mr. A., but also to protect other women. Second, that Mr. A. has suffered minimal consequences from her email, contrary to her being the victim of a criminal conviction. Third, she did not benefit from the exoneration from responsibility provided for in Article 35 of the Law of July 29, 1881, on freedom of the press, because the burden of proof against her was excessive, since the facts were committed without witnesses. Finally, the fact that she did not benefit from the exemptions provided for in labor law, for having sent the email to three non-members of the Association, constitutes an unreasonable measure.

On the other hand, the French Government argued, first, that the limitation of the applicant’s right to freedom of expression was carried out as provided by law to protect the reputation of a third party. As such, the French Government justified that the limitation had a legitimate and necessary purpose in a democratic society. Second, the applicant did not provide sufficient proof of her allegations and was not able to invoke the good faith exception. Third, the fact that the conviction was partial at the Court demonstrates that a correct analysis of the situation was made.

The ECtHR indicated that the application of certain limits to freedom of expression is admissible based on the national margin of appreciation, but there are three conditions that each country must respect to ensure that any restriction is in conformity with its international obligations: (i) the principle of the pre-eminence of the law or the principle of legality; (ii) the existence of a legitimate interest; and (iii) that the measure is necessary in a democratic society.

As for the first two conditions, the ECtHR noted that the decision was indeed based on an already existing law and that there was a legitimate interest in protecting Mr. A.’s reputation, an intention with which all parties agreed. However, in analyzing the third condition, the proportionality of the measures taken in the context of the defamation was considered. For that reason, it was important for the ECtHR to determine whether a balance was made between the protection of Mr. A.’s reputation and the protection of the applicant’s right to freedom of expression. In this regard, it was important to consider “the context and nature of the statements, the situation and the intent of the interested party, the number and quality of the recipients of the email, the degree of gravity of the attack on Mr. A.’s reputation, and the severity of the sanction inflicted.” [para. 46]

The ECtHR considered that the email, for which the applicant was convicted, was sent in a situation in which Ms. Allée’s private and professional life were closely connected. As for the six people to whom the email was sent, all of them were aware of the situation, except for Mr. A.’s second son, while all the others were directly or indirectly involved due to the nature of the facts. Therefore, the ECtHR noted that the limited number of recipients of the email suggests that the purpose of the email was not to become public, but only to put an end to a particular situation, as it was pointed out before by the ECtHR in Matalas v. Greece (2021). [para. 55] However, domestic jurisdictions, in making a strict interpretation of the conditions of exoneration from criminal responsibility, recognized the public nature of the email. In that sense, the Court considered that ‘‘in the circumstances of the present case, such an approach seems excessively restrictive in light of the compliance requirements of Article 10.” [para. 49]

The Court further explained that the content of the email is about incidents experienced by the applicant. This was confirmed by the Paris Court of Appeal and the French Court of Cassation, which affirmed that Ms. Allée could not be blamed for communicating the moral and sexual harassment she suffered. However, these same two jurisdictions decided that Ms. Allée could not benefit from the good faith exemption due to a lack of factual basis. The ECtHR stated “that the alleged acts were committed without witnesses, and that the absence of complaint of such behavior cannot serve to qualify her bad faith.” [para. 52] In that sense, it reiterated the need, on the grounds of Article 10, to provide the necessary protection to complainants of moral or sexual harassment. It considered that “the national courts, by refusing to adapt the concept of sufficient factual basis and the criteria of good faith to the circumstances of the case, imposed an excessive burden of proof on the applicant by requiring her to prove the incidents she intended to complain about.” [para. 52]

As for Mr. A.’s reputation, the ECtHR reasoned that it is not the email itself that caused damage to his reputation, but rather the actions of the applicant’s husband. However, one cannot confuse the intentions and means used by her with the actions of her husband.

Finally, with regard to the sanctions imposed by the national courts, although the Court did not consider them to be extremely severe, it is no less true that the applicant was criminally convicted. Such convictions may have a chilling effect on other victims of harassment from reporting abuse.

As a result, the European Court of Human Rights ruled that the principle of proportionality was not respected in relation to the legitimate aim pursued and the restriction on the right to freedom of expression. For this reason, it declared that France violated Article 10 of the Convention and, as a result, ordered it to pay EUR 8,500 for moral and material damages, plus any tax due on these sums, to the applicant, as well as the payment of EUR 4,250 as tax, for costs and expenses, plus any tax due on these sums.

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