Content Regulation / Censorship, Defamation / Reputation, Political Expression
The Case of Sarawak Report and Malaysia Insider
Closed Mixed Outcome
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The Paris Tribunal held that the publisher of an online blog (dedicated to criticizing the French judicial system) could not be held criminally liable for an insulting and “outrageous” comment against a public official, published by an anonymous author. Relying on Article 93-3 of the French law on audiovisual communications of 29 July 1882, the Court held that the “publisher did not have actual knowledge of the message before it was posted online or if, as soon as he or she became aware of it, he or she acted promptly to remove the message”. It was not established by the police investigation that the defendant had editorial control of the comments before their publication. Further, the blog editor removed the message (and the blog itself), even before he was aware of the complaint against him, which made the Tribunal stress that he had intervened as promptly as he could to remove it. Therefore, the Tribunal concluded that Joseph M. could not be held liable as the publisher of insulting statements and dismissed the case against him.
On September 26, 2016, a magistrate named Jacques P. filed a criminal complaint with the investigating magistrate of the Paris Tribunal for public insult against a public official under Article 23, 29 (2) and 33 (11) of the law on freedom of press. He submitted that an article entitled “Draguignan, partisan justice; the justice must be rendered objectively, Jacques P. :’the justice’ is dead” was published on the website http://juge.partisan.online.fr on July 16, 2015. The magistrate indicated that on June 26, 2016, a person published under the pseudonym “Clementine” an online comment under the said article, which called the judge “big perverted manipulator”, saying that “he must take psychotherapy” before exercising the judgeship and questioning “how he can judge others”. The plaintiff magistrate argued that these “outrageous and contemptuous expressions presented him as a person unfit to hold public office as a magistrate.” The plaintiff complained that the publisher did not moderate the content of the website, and did not react promptly to remove the comment in question. He requested the Court to sentence Joseph M. to pay a sum of 1,000 euros in compensation for the damages he incurred and of 8,000 euros on the basis of Article 475-1 of the Code of Criminal Procedure.
A criminal investigation was initiated against Joseph M., who was identified as the creator and editor of the blog. Under Article 93-3 of the law on audiovisual communication, publishers may be prosecuted as the principal author, when “the incriminated message has been the subject of a review prior to its communication to the public. Otherwise, the author, and in the absence of the author, the publisher will be prosecuted as the principal author.”
The defendant claimed that the criminal investigation did not establish any prior review or warning had taken place. On the contrary, there was evidence that the publisher had deleted the post before any legal action of the plaintiff .
In his statement during the investigation, Joseph M. confirmed he created the blog at issue after he had noticed difficulties faced by a litigant when being heard without a lawyer. He argued, however, that he did not understand how the impugned comment could have been published without his approval. As the website moderator, he thought he had the right to review comments before publication. He requested an investigation to examine whether his computer was hacked, but the intermediary service company Free was not able to provide any answer, retorting that moderation aspects are restricted to the website administrator’s competencies.
The investigating authorities could not identify the author of the comment since he/she was connected through a mobile IP address and the connection data was only stored for one year under the French law.
Judge D. Chauchis, vice President of the Tribunal Judiciaire of Paris delivered the judgment for the Court.
The main issue before the Court was to know if it was possible to convict the website publisher as no evidence of prior review of the litigious comment was established.
The complaint invokes Article 29 of the law on the freedom of the press’s legal definition of public insult offense, defined as “any outrageous expression, terms of contempt or invective which does not contain the imputation of any fact”. The complaint alleges “outrageous and contemptuous expressions presenting the plaintiff as unfit to exercise his function as a magistrate.” Article 93-3 of the statute dated 1982 the 29th of July rules that the publisher can be prosecuted for any content on his website if a prior review of the litigious comment is established. On a social network, the publisher will be prosecuted for a comment only if it is proven that he knew the existence of this comment or that he didn’t remove this comment after a prior notice by the plaintiff.
Having noted the absence of evidence corroborating that Joseph M. had editorial control over the messages published under the article in question (no evidence that he approved the publication of the contentious comment, nor did he receive a notification before its publication), the Paris Tribunal held that there was no advanced review of the “outrageous” and insulting comment. In fact, it could not be established that Joseph M. knew of the impugned comment before its publication. The evidence established, however, that on the date of the complaint by the magistrate Jacques P., the article under which the allegedly injurious message was published was removed and the blog was deleted by Joseph M., long before he knew about the complaint lodged against him. This Tribunal’s decision highlights the importance of the succession of events. Article 93-3 of the law on audiovisual communication through the word “promptly” incorporates the importance of the timeline in the decision-making process: “When the offense results from the content of a message sent by an Internet user to an online public communication service and which is made available by this service to the public in a space for personal contributions identified as such, the publisher cannot be held criminally liable as the main author if it is established that he had no actual knowledge of the message before it was put online or if, from the moment he became aware of it, he acted promptly to remove this message.”
In light of the foregoing, the Tribunal concluded that Joseph M. could not be held liable as the publisher of insulting statements and dismissed the case against him.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment expands freedom of expression online by holding that publishers will not be held criminally liable for anonymous and insulting comments posted without their knowledge, as long as the offending posts are removed promptly after notification. The judgment contracts expression in so far as criminal liability for insulting or defamatory posts is disproportionate when civil remedies would be sufficient.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Articles 23, 29 (2) and 33 (11)
Case significance refers to how influential the case is and how its significance changes over time.
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