Defamation / Reputation
Niskasaari v. Finland
Closed Contracts Expression
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The European Court of Human Rights (ECtHR) held that there had been no violation of Henry de Lesquen du Plessis-Casso’s Article 10 right to freedom of expression by France following its criminal conviction of Plessis-Casso for defamation of a politician. Plessis-Casso had posted a letter online criticizing his invitation to a ceremony to pay tribute to the “harkis” (French army auxiliaries during the Algerian war) as political opportunism. He wrote in his letter that an “eminent figure of Versailles” had waited until the end of the war to request French nationality in order to avoid military service in Algeria. The ECtHR affirmed the findings of the French courts, holding that Plessis-Casso’s opinion was a value judgment without factual basis, as he made no serious attempt to verify the truthfulness of the allegation. Therefore, there had been no violation of Plessis-Casso’s Article 10’s right to freedom of expression.
In its ruling the ECtHR noted that Article 10 does not ensure freedom of expression without any restrictions, even in the context of issues of general interest. Article 10(2) states that the exercise of this freedom carries with it “duties and responsibilities.” Thus, the information reported on issues of general interest is subject to the condition that they are acting in good faith to provide information that is accurate and trustworthy. Therefore, even political opponents in their discussions of the actions, or lack thereof, of officials ought not exceed certain limits, especially and including the reputation and rights of others.
In 2006, the deputy mayor of Versailles, “E.P.,” invited the Councillor of Versailles, Henry de Lesquen du Plessis-Casso, to a ceremony paying tribute to the auxiliaries in the French Army during the Armenian war, referred to as “harkis.” In response, Plessis-Casso posted an open letter on the Internet, accusing E.P. of having intentionally waited to request French nationality in order to avoid serving in the military during the Algerian war.
E.P. filed charges against Plessis-Casso in criminal court for public defamation, which is provided for and punishable under Articles 29, 32, and 48 of France’s Act of 29 July 1881 on Freedom of the Press. E.P. alleged that Plessis-Casso imputed facts affected his honor, as is prohibited under Article 29. Plessis-Casso defended himself by claiming that E.P’s naturalization date had been revealed to him by “A.D.,” a former Versailles mayor, as well as “MR-B,” a former finance deputy.
The criminal court found Plessis-Casso guilty of defamation, without the possibility of having acted in good faith, and fined him 2000 Euros. Plessis-Casso appealed to the Versailles Court of Appeals, which confirmed the lower court’s ruling, adding that his remarks unquestionably infringed the honor and reputation of E.P., and that if he had intended to make a good faith effort to engage in a public debate about the place of harkis in the national community, this had been thwarted by his choice to take an approach relating to an aspect of private life of the mayor of Versailles, which displayed personal animosity.
This led Plessis-Casso to appeal his case before the ECtHR, alleging a violation of Article 10 of the ECHR, which states:
The ECtHR is empowered to use its discretion to give the final ruling on whether any “restriction” of speech is reconcilable with freedom of expression as protected by Article 10. In doing so, it must look at the interference or restriction on speech holistically, considering both the content of the remarks held against the applicants and the context in which they were made in order to determine whether the contested measure was “proportionate to the legitimate aim pursued” («proportionnée au but légitime poursuivi») and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” («pertinents et suffisant»)
The ECtHR highlighted that Article 10(2) of the ECHR leaves little room for restrictions on freedom of expression in the area of political speech or topics of general public interest. Further, the limits of permissible criticism are wider with regard to a politician in comparison to a private person. The ECtHR also noted that political invective often spills onto a personal level, and that it is one of “the hazards of politics and the free debate of ideas, guarantors of a democratic society” («ce sont les aléas du jeu politique et du libre débat d’idées, garants d’une société démocratique»), as the political opposition must have a voice in the political arena. ”
Nevertheless, the ECtHR noted that Article 10 does not ensure freedom of expression without any restrictions, even in the context of issues of general interest. Article 10(2) states that the exercise of this freedom carries with it “duties and responsibilities.” Thus, the information reported on issues of general interest is subject to the condition that they are acting in good faith to provide information that is accurate and trustworthy”(«Néanmoins, la Cour observe que l’article 10 ne garantit pas une liberté d’expression sans aucune restriction, même dans le cadre de questions d’intérêt général. Le paragraphe 2 de cet article précise que l’exercice de cette liberté comporte des «devoirs et responsabilités ». Ainsi, l’information rapportée sur des questions d’intérêt général est subordonnée à la condition que les intéressés agissent de bonne foi de manière à fournir des informations exactes et dignes de crédit»). Therefore, even political opponents in their discussions of the actions, or lack thereof, of officials ought not exceed certain limits, especially and including the reputation and rights of others.
The ECtHR held that the remarks made by Plessis-Casso were value judgments not based on a sufficiently factual basis. The remarks were indeed political in nature, and Plessis-Casso had been contesting the legitimacy of the mayor to preside over a public ceremony paying homage to Muslims in Algeria who fought for France, which is a debate of general interest. However, the ECtHR ultimately agreed with the Versailles Court of Appeal’s assessment regarding the deliberate choice of Plessis-Casso to deflect what could have been a debate about how Harkis are regarded and instead took an approach attacking an aspect of the private life of the mayor. The ECtHR also added that since the disputed allegations were made in writing, as opposed to during an official hearing by a municipal body or during a verbal exchange, and at a time when no passionate controversy surrounded the issue in question, one can impute that Plessis-Casso acted in a premeditated manner as opposed to reactively in the context of a rapid and spontaneous exchange. The ECtHR therefore concluded that the domestic courts had not overstepped in concluding that the Plessis-Casso had exceeded the limits of expression even in the context of political debate, and, therefore, France had not violated Article 10.
In a concurring judgment, J Lemmens expressed that he voted with the majority reluctantly, because although he disagreed with the findings of the French courts (on the ground that he did not see the lack of proven factual basis—as opposed to non-existent—as relevant), he asserted that his role as an ECtHR judge is not to retry the case but to review whether the national authorities had remained within the margin of appreciation where there are differing but legitimate views, as in the case of balancing freedom of expression with the protection of reputation. Here, he deferred to the national courts since they had looked at the case in detail, balanced the rights and interests, and concluded that their interference was not unreasonable.
Dissenting J Power-Forde vehemently disagreed with the majority, holding that if the existence of facts can be demonstrated, then value judgments based on those facts need not be accurate and, in fact, requiring such a demonstration is not only impossible but an infringement of the freedom of opinion in and of itself. Power-Forde stated that accusations of double standards and hypocrisy are common traits of political rivals in political debates, and, in the present case, Plessis-Casso and E.P. were both holders of public office and notorious opponents. Power-Forde argued the domestic courts had convicted Plessis-Casso not on the ground that his opinion lacked a factual basis, but because he could not prove that the third party who informed him shared his opinion regarding E.P., and that a person ought not to be criminally condemned because he cannot prove whether a third party shares his opinion. In addition, Power-Forde found that it should also not be pertinent whether Plessis-Casso wrote or spontaneously spoke his remarks because “whether a value judgment is formed spontaneously or slowly over time is little or no difference as to whether or not it is protected by the right to freedom of expression.” («Qu’un jugement de valeur se forme spontanément ou lentement avec le temps ne fait guère ou pas de différence quant à savoir s’il est protégé ou non par le droit à la liberté d’expression.»)
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