Kahiu v. Mutua
Closed Contracts Expression
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The Grand Chamber of the European Court of Human Rights held that the conviction for defamation against the author and publisher of a novel, as well as the conviction of the publication director of a daily newspaper, who cited in extenso the passages found to be defamatory by the French authorities did not constitute a violation to their right to freedom of expression. The novel in question, “Jean-Marie Le Pen on Trial”, portrayed a specific image of the French politician Jean-Marie Le Pen, his party, and their conduct, which could potentially harm their reputation and honour. The Court found that the interference of the three applicants’ right to freedom of expression was necessary in a democratic society to protect the rights and reputation of Le Pen and the Front National.
In August 1998, the book, “Le Procès de Jean-Marie Le Pen” (Jean-Marie Le Pen on Trial), was published in France. The book narrated the trial of a militant of the Front National who murders a North African young man while setting up posters for his party. He admitted that it was a racist crime, and was then defended by Pierre Mine, a Jewish, homosexual and left-wing lawyer. The novel was based on two real murders of a young Moroccan and a young Frenchman of Comorian origin by militants of the Front National political party in 1995. Those militants were convicted in June 1998 after a trial during which leaders of Front National, including Jean-Marie Le Pen, declared that the case was “no more than a provocation and a put-up job through which the party’s enemies sought to harm it” [para. 11]. In the novel, the author questions the responsibility of Le Pen for the murders caused by the fictional militants fuelled by his rhetoric and focuses on the moral and political views of several figures with relation to the far right’s ideology and political party.
In November 1998, Le Pen and Front National initiated proceedings against the author of the novel, Mathieu Lindon, and Paul Otchakovsky-Laurens, the chairman of the book’s publishing company, P.O.L., in the Paris Criminal Court. Le Pen and Front National submitted that six extracts from the novel were defamatory under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881.
On October 11, 1999, the Paris Criminal Court convicted the publishing company of defamation and the author of complicity for four of the six extracts of the novel. While recognizing that the author had written a novel, the Court noted that the book portrayed Le Pen – an actual living political figure and his political party, the Front National. It held that the use of a novel does not prevent the classification of the charges because the work intended to convey clearly articulated ideas and to portray a specific image of Le Pen, his party, and their conduct, which could potentially harm their reputation and honour. The Court analysed each of the six extracts to see if they were precise enough to require addressing the issue of proof. In the first extract, Le Pen is alleged to be the chief of a gang of killers, referencing the racist crime committed by the fictitious character under trial who is said to have been inspired by the ideas defended by Le Pen, and the Court held that the precision used would remind readers of the real murders was enough to constitute defamation and that these facts were thus susceptible of proof. The Court held that the extract which indicated that the Front National would attack or kill anyone who tries to betray or leave the party was defamatory because it was precise and susceptible of proof. The extract in which Le Pen is accused of “a form of racism that reminds the reader of the worst atrocities ever perpetrated” was also held to be defamatory [p. 7]. The Court held that the extract which described Le Pen as being a “vampire” that succeeded on the “bitterness of his electorate” and “the blood of his enemies” and of slandering his adversaries to protect himself from the accusations against him was precise and compromised the reputation and honour of Le Pen [p. 7]. However, the Court held that two passages which asserted that Front National militants were performing “clean-up rounds on the housing estates” and described young militants of Front National as being armed, triggered by their “master ranter”, and of creating a “pre-insurrection” atmosphere, respectively were too vague to justify prosecution [p. 5-6].
The Court also recognized that when it comes to the political and ideological debates authors were afforded the greatest freedom of expression but that this freedom must be restricted when it turns into personal attacks. It held that the author and the publisher only provided press articles which did not hold sufficient evidentiary value to corroborate the passages deemed defamatory and distorted the facts to reinforce opposition of the readers to Le Pen and his party. Consequently, it found that Lindon and Otchakovsky-Laurens did not act in good faith and that the passages in the book could not be thus justified.
Lindon and Otchakovsky-Laurens appealed to the Paris Court of Appeal, arguing that the book was a work of fiction that treated the current public debate about how to go against the rise of the far right with distance and irony and that the alleged defamatory remarks were only value judgments with regards to Le Pen and the National Front. Additionally, they argued that these remarks were made by fictional characters and did not reflect the ideas of the author, who merely sought to make a criticism of the anti-racist associations and left-wing intellectuals’ strategies in their fight against Le Pen’s party [p. 8-9]. Citing the case of Lingens v. Austria, Lindon and Otchakovsky-Laurens argued that being penalised because they could not prove the pertinence of their opinion was an infringement of their right to hold opinions. They also noted that Le Pen had been previously convicted on several occasions for inciting racial hatred.
In September 2000, the Court of Appeal upheld the decision of the Paris Criminal Court but found that only three passages were defamatory. The Court of Appeal noted that applying the rules on defamation to a work of fiction differs from a press article or other article that directly expressed the author’s view in that it is necessary to confirm, on one hand, whether the claimants are the individuals referred to in the offending remarks and, on the other, whether the remarks made by the narrator matches the author’s idea as they appear from the work as a whole or, on the contrary, the author has genuinely created distance from those remarks and they can only be attributed to the characters. The Court of Appeal found that Lindon and Otchakovsky-Laurens failed to show that their comments were preceded by a sufficiently serious investigation and because the form of expressing the three passages found defamatory were not sufficiently dispassionate, and so their comments were not made in good faith. The Court held that Lingens v. Austria was not applicable as the allegations found to be defamatory in this case did not constitute value-judgments within the meaning of that decision.
In 2001, Lindon and Otchakovsky-Laurens then appealed to the French Court of Cassation which dismissed the appeal on the basis that the lower courts had accurately assessed the meaning and connotation of the offensive writings and thus justified their decision while respecting the Convention, which recognizes the possibility of restricting the right to freedom of expression.
In November 1999, Libération, a daily newspaper, published a petition by ninety-seven contemporary writers against Lindon and Otchakovsky-Laurens’s conviction of defamation. The newspaper reprinted the passages from the novel which the Paris Criminal Court had held to be defamatory and stated that “If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here” [p. 15].
Le Pen and his party brought proceedings against Serge July, the publication director for Libération, for the same offences. In September 2000, the Paris Criminal Court ruled in favour of Le Pen and the National Front, holding that Libération acted in bad faith as it reproduced, in full, the passages already held as defamatory by the same court. The Court stated that there was “a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms” [para. 23].
July appealed the decision, arguing that the article and petition was part of a broader political debate and that the freedom to discuss political matters could not be deterred by unnecessary requirements related to protecting other’s rights and preventing disorder. In March 2001, the Eleventh Division of the Paris Court of Appeal upheld the lower court’s judgment, and confirmed the defamatory nature of the passages and dismissed the defence of good faith. It stressed that July’s aim was to show support to Lindon and that he had failed to carry out an investigation before making the accusations against Le Pen and his party.
July appealed this decision to the Court of Cassation, arguing that Articles 10 – the right to freedom of expression – and 6 – the right to a fair trial – of the European Convention on Human Rights were violated. He questioned the impartiality of the Court of Appeal arguing that it had relied on the decision against Lindon and Otchakovsky-Laurens and was thus “clearly targeted by the offending article” [para. 26]. In 2002, the Court of Cassation dismissed the appeal, holding that the participation of some judges in the case against Lindon and Otchakovsky-Laurens was not contrary to the impartiality requirement established in Article 6 and that the Appeal Court justified its decision without breaching Article 10.
Lindon, Otchakovsky-Laurens and July then approached the European Court of Human Rights, separately. The two cases were joined and were referred to the Grand Chamber of the Court.
The Court delivered a majority judgment of thirteen to four. Judge Loucaides delivered a separate, concurring decision. Judges Rozakis, Bratza, Tulkens and Šikuta delivered a dissenting judgment. The central issue was whether the interference of the right to freedom of expression through the defamation conviction was legitimate in that it was prescribed by law and necessary in a democratic society.
Lindon and Otchakovsky-Lourens argued that the penalty was not foreseeable and, as such, not prescribed by law. They submitted that the Paris Court of Appeal had based its analysis on a subjective and random process of deduction that aimed to establish the thoughts of the author, making their decision inconsistent and incoherent and which made it difficult for writers to know the limits to authorised speech. Lindon and Otchakovsky-Lourens also submitted that this restriction to their rights was not necessary in a democratic society as their convictions were based on a purely fictional text which could not justify any “pressing social need” and the criminal penalty was disproportionate.
July also submitted that his conviction was not necessary because the article “was published in the context of a political debate on a matter of general concern” and that it was not proportionate to the aim of protecting the reputation of Le Pen as he was already prone to be provocative and use offensive language [para. 33].
The Government maintained that the “penalty” was foreseeable by noting that there had been cases of defamation from literary works in France and highlighted that Otchakovsky-Lourens had admitted during the appeal that he was aware of the risk that Le Pen could bring proceedings against him about the book in question. The Government argued that the domestic courts had based their decisions on “relevant” and “sufficient” reasons, weighing the various interest at stake and applying a proportionate restriction, which did not include the seizure nor destruction of the novel.
The Court held that the legal basis for the conviction was foreseeable as Lindon and Otchakovsky-Lourens should have known the relevant applicable laws for the field of publishing and thus that they could not allege to have been unaware of the risk of being subject to defamation proceedings. Accordingly, the Court held that the interference was “prescribed by law” within the meaning given by Article 10(2) of the Convention.
The Court also confirmed that the interference had the legitimate aim of protecting Le Pen and National Front’s reputation.
With regard to the “necessary in a democratic society” element, the Court emphasized that Article 10 protects ideas that are regarded as offensive and shocking and that this represents “the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’” [para. 45]. It added that the term “necessary” incorporates the concept of a “pressing social need” and that, although States have a margin of appreciation in ascertaining what that need is, the Court retains the supervisory jurisdiction to determine whether an interference with a right is necessary [para. 45]. With reference to Brasilier v. France, no. 71343/01, the Court described political speech as the place where “freedom of expression is of the utmost importance” and noted that there is little scope for restricting freedom of expression with regards to political speech or debate and that the limits of acceptable criticism towards a politician are wider than with relation to a private individual [para. 46].
The Court examined the nature of expression in the present case and commented that novels are a method of artistic expression and stressed that “[t]hose who create or distribute a work, for example of a literary nature, contribute to the exchange of ideas and opinions which is essential for a democratic society” [para. 47]. The Court also commented that novels generally appeal to a more narrow public than print media and so the potential damage to Le Pen and his party’s rights and reputation was likely to have been limited. It further noted that the work was that of political expression which required a higher level of protection and, thus, a limited margin of appreciation was afforded to the State in determining the “necessity” of the penalty imposed.
The Court held that France’s national authorities had imposed a penalty only against specific passages that were found to be damaging and not to the arguments developed in the novel, and so the findings of the national courts could not be criticized considering the “virulent content of the impugned passages and the fact that they specifically named the party and its chairman” [para. 52]. Additionally, the Court accepted the domestic courts’ position that to assess whether an impugned statement was justified, it is necessary to differentiate between a statement of fact and value judgments: a statement of fact is one that can be demonstrated while one of opinion cannot, even though it should nevertheless be supported by sufficient factual basis. This distinction, which falls within the margin of appreciation of the national authorities, is normally not required to be done when handling novel extracts but it is relevant in situations where the work is not fully fictional as it includes real facts or characters, such as in this case.
The Court agreed with the French Courts that the defamatory passages were allegations of facts and not only value judgments that required, at least, “basic verification” [para. 54]. Moreover, it found that the remarks went beyond what was tolerable in political debate even if they referred to a person who embodies an extremist view on the political scale.
In assessing the interference with July’s rights, the Court stressed the importance of a free press and its role as a “public watchdog” [para. 62], but also that the “protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism” [para. 67]. The Court noted that July had been convicted not of reporting on Lindon and Otchakovsky-Lourens’s own convictions but for reproducing the impugned passages from the book.
Accordingly, the Court held that the interference of the right to freedom of expression was necessary in a democratic society to protect the rights and reputation of Le Pen and the Front National, within the meaning of Article 10 of the Convention, and that the penalties were proportionate and founded on “relevant and sufficient reasons”.
On the alleged violation of Article 6 claimed by July, the Court found that the claim that the Paris Court of Appeal was not impartial were not objectively justified, and that there was no violation of Article 6.
Judge Loucaides disagreed with the approach taken throughout the years by the Court where protection of reputation is less protected than freedom of expression, as reputation is simply considered a legitimate ground to restrict the right. The judge noted that “freedom of speech has been upheld as a value of primary importance which in many cases could deprive deserving plaintiffs of an appropriate remedy for the protection of their dignity” [p. 40]. He stated that there would be a more effective protection of individuals’ reputations against freedom of expression if the respect for reputation was accepted as an autonomous human right that derives from the Convention itself. The Judge argued that the suppression of untrue defamatory statements would effectively protect the public’s right to truthful information because it would discourage false speech and misinformation (which has a chilling effect on journalism) and would improve both the general quality of the public debate and the political process as it would reduce the number of capable persons driven away from serving in the government by false accusations. The Judge stressed the importance of retraining mass media, which focuses more on profitable and flashy news than on spreading accurate information to the public, “out of respect for the truth and for the dignity of individuals” [p. 43].
Judges Rozakis, Bratza, Tulkens and Šikuta, in their partly dissenting judgment, noted that in this case, where freedom of expression conflicted with the right to protect an individual’s reputation, the Parisian courts did not weigh the different interests against each other to confirm whether a fair balance had been struck. The Judges also disagreed with the majority for not conducting its own review but simply endorsing the national court’s reasoning. The dissenting judges considered that the method used by the national courts to assess if the passages were defamatory created uncertainty as it depended on whether the author had distanced himself sufficiently from the words spoken in the novel and by doing so “the Court of Appeal imprisoned literature in a set of rigid rules at odds with the freedom of artistic creation and expression” [p. 45]. The Judges stated that the factors that should have been considered were the fact that it was an artistic work that justified a higher level of protection; the injured party’s status, as politicians are expected to have more tolerance in front of polemical discourse; and the distinction between statements of fact and value judgments, also considering that the need for a “link between a value judgment and its supporting facts could differ from case to case according to the specific circumstances” [p. 49]. These Judges disagreed with the domestic courts’ finding that Lindon and Otchakovsky-Lourens failed to carry out “basic verification” as there was sufficient factual basis that could be derived from Le Pen’s several convictions throughout his political career. They also would have found excessive the claim that the novel was appealing to violence or hatred since many of the expressions, like “the chief of a gang of killers” or “a vampire who thrives on the bitterness of his electorate” could not be taken literally. They also noted that there had not been any review as to the proportionality of the sanction by the Grand Chamber. The Judges maintained that July could not be said to have failed in his duty to act in good faith as he could not be criticized for informing the public of the protest against the conviction of Lindon or for not amending the allegations found defamatory with its own comments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by affording a wider margin of appreciation to the State when establishing limits to certain expressions through artistic creations.
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