Defamation / Reputation
Commonwealth v. Pon
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The French Court of Cassation cancelled the conviction of a lawyer for “public defamation of a civil servant”. The conviction was in response to critical statements he made in an interview with Le Monde newspaper about the handling of an investigation into the death of his client’s husband. The conviction had been subject to an application before the European Court of Human Rights and, in April 2015, the Grand Chamber of the European Court found that the conviction had violated the lawyer’s right to freedom of expression under Article 10 of the European Convention on Human Rights. Following this decision, the case came before the Court of Cassation for review. The Court of Cassation applied the reasoning of the Grand Chamber, and found the statements of the lawyer to fall within the permissible limits of the right to freedom of expression. Accordingly, the Court of Cassation found the conviction to be in violation of the right to freedom of expression.
The background to this case can be traced back to October 19, 1995 when the French judge Bernard Borrel was found dead in Djibouti under suspicious circumstances. His death was subject to a number of judicial investigations in France. In October 1997, the judicial investigation was assigned to Ms. M and Mr. LL as investigating judges. The investigation had suffered from a number of irregularities following their appointment. The case was later withdrawn from the judges, and the new investigating judge was named as Judge P. In a report published by Judge P, it had come to light that a video-cassette of a site visit to Djibouti was not in the judicial investigation file and was not registered as an exhibit. This video-cassette was accompanied by a friendly letter from the public prosecutor of Djibouti to Ms. M, which was critical of Mrs. Borrel, the wife of Bernard Borrel, and “her lawyers”.
Mr. Morice, the lawyer of Mrs. Borrel, wrote a letter to the Minister of Justice to complain about these developments. Excerpts of this letter were later published in Le Monde, alongside comments made to the journalist by Mr. Morice. These comments questioned Ms. M’s and Mr. LL’s “impartiality and fairness”.
On July 16, 2008, the Rouen Court of Appeal found Mr. Morice guilty of “public defamation of a civil servant” and ordered Mr. Morice to pay a fine of 4,000 EUR and damages. Mr. Morice argued that he could rely on immunity from prosecution, as the letter was sent to the Minister of Justice and so could benefit from a provision which sought to protect records relating to judicial proceedings and pleadings filed in court (section 41 of the Press Act). The Court of Appeal rejected this argument on the basis that the letter was not part of any proceedings involving the exercise of defence rights before a court of law. An appeal filed by Mr. Morice to the Court of Cassation was later dismissed.
Mr. Morice then filed an application to the European Court of Human Rights (European Court). On April 23, 2015, the Grand Chamber of the European Court found violations of Mr. Morice’s right to a fair trial (Article 6) and right to freedom of expression (Article 10) (see Morice v. France).
In April 2016, the Court of Revision and Review of Criminal Convictions ordered for a review of Mr. Morice’s case by the Court of Cassation.
The Court of Cassation (Court) first considered whether the lower courts were correct to find that Mr. Morice could not benefit from the immunity provided by section 41 of the Press Act. Section 41 of the Press Act states that “[n]o proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings drawn up in good faith, or from any statements made or pleadings filed in a court of law. […] Defamatory allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by third parties.” The Court held that this provision did not protect statements publicised outside the courts and unrelated to ongoing proceedings. Accordingly, the Court of Appeal was legally justified in reaching its decision that Mr. Morice could not benefit from the immunity under section 41 of the Press Act in relation to the interview in Le Monde.
The Court then turned to consider whether the decision of the Court of Appeal complied with Article 10 of the European Convention on Human Rights. The Court found that Mr. Morice’s statements in Le Monde dealt with a matter of “general interest” relating to the judicial treatment of a criminal case which had national repercussions. Furthermore, the Court found that the statements were “value judgments” with a “sufficient factual basis”, the factual basis being the judges’ failure to place a video-cassette in the investigation file and the discovery of a friendly letter from the public prosecutor of Djibouti to one of the investigating judges denouncing Mrs. Borrel’s and her lawyers’ behavior. In light of these considerations, the Court held that Mr. Morice’s statements could not be reduced to mere statements of personal animosity. Instead, according to the Court, they fell within the permissible limits of his right to freedom to criticise the judges’ actions.
The Court concluded that the Court of Appeal violated Mr. Morice’s right to freedom of expression under Article 10 of the European Convention on Human Rights, and cancelled the conviction against Mr. Morice for defamation.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by overturning the conviction of a lawyer for defamation of a public official. The decision is a good example of a country’s domestic courts implementing a decision of the European Court following a judgment against it. In its decision, the French Court of Cassation applies the general principles on the right to freedom of expression from the European Court’s jurisprudence. In doing so, the decision strengthens the French legal profession’s right to freedom of expression, particularly with regard to critical statements made about the judicial handling of certain cases.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.