In France, defamation is governed by the law of July 29, 1881 on the freedom of the press.
Defamation is therefore subject to a specific liability regime which differs from the general regime by the introduction of a very short limitation period of three months from the date of first publication to file a complaint and the establishment of a system of cascade liability.
Criteria for the qualification of defamation
In French law, article 29 of the law of July 29, 1881 on the freedom of the press defines defamation in the following terms: ” any allegation or imputation of a fact which is prejudicial to the honor or consideration of a natural or legal person.
The system established by the law of July 29, 1881 is a derogatory system to the common law.
5 criteria must be met to be in the presence of defamation:
- The allegation must be based on specific facts (not just opinion or debate);
- The allegation must be directed at a specific person (whether or not the person is named. If there are sufficient elements in the remarks to identify a person precisely, the personal attack, the material element of the offence, is constituted);
- The allegation must relate to a fact that is prejudicial to the honour and consideration of the person concerned;
- The allegation must be made in bad faith (which is presumed);
- The allegation must be public.
The fact of attacking the honor and the consideration of a person by imputing a precise fact to him is thus likely to be qualified as defamatory.
A simple criticism or an assessment of value cannot in itself constitute defamatory allegations.
Specificities of defamation
The author of the defamation can be exonerated from his responsibility if he proves, according to his status, that 3 or 4 conditions were met (see in particular the jurisprudence of the ‘Cour d’appel de Poitiers’, March 8, 2022, n°21-01.947):
- Its lack of intent to harm;
- The caution of his claims;
- Its legitimate purpose, including the purpose of information ;
- That a serious and contradictory investigation has been carried out (this condition only applies to journalists).
Given the specificities of the infringement (characterization and proof of the fault, evaluation of the prejudice, etc.), it is recommended to be accompanied by a lawyer specialized in the matter in case of litigation.
Distinction between private and public defamation
Defamation is qualified as private when the defamatory acts are committed in a strictly private context, for example in the context of sending a text message, letter or e-mail.
In such a case, the author of the defamation is liable to a fine of 38 euros, which can be increased to 3,000 euros if the remarks are discriminatory (sexism, racism etc.).
Defamation is said to be “public” when the defamatory remarks are made in a public place, for example on the Internet, in a newspaper etc…
The author of the defamation may be sentenced to a fine of 12,000 euros, which may be increased to 45,000 if the victim demonstrates the presence of aggravating circumstances, namely:
- Allegations concerning a public person such as a magistrate, a policeman etc… ;
- Allegations of discrimination.
Point on the distinction between defamation and denigration
The ‘Cour d’appel de Nancy’, in a decision dated November 17, 2021, recalled “that it is a principle that disparaging assessments disclosed by a person concerning the products, services or performances of an industrial or commercial enterprise do not fall within the provisions of article 29 of the law of July 29, 1881 when they do not concern a natural or legal person; that the disclosure of such information constitutes disparagement which in fact falls within the category of acts of unfair competition, engaging the liability of their author, on the basis of the provisions of article 1240 of the civil code. (Cour d’appel de Nancy, November 17, 2021, n°21-01.066).
The Bouchara Law firm assists you in particular in :
- Monitoring what is said about your company, especially on the Internet and social networks;
- The defamation actions of which you can be victim, in demand as well as in defense, before the competent Court;
- The follow-up of the procedure.