Denigration constitutes a limit to the freedom of expression which is a fundamental freedom, and implies in itself a right to criticism which must be justified by a desire to inform.
Denigration is distinct from defamation , which is governed by the law of July 29, 1881 on the freedom of the press and is therefore subject to a specific liability regime.
Denigration is defined as a practice that consists of discrediting a competitor, by spreading malicious information about it, or about its products and/or services, with the aim of harming it (see in particular – Tribunal de commerce de Paris, February 22, 2013, n°2012076280).
However, case law has established the principle that there does not have to be a competitive link in order to qualify as denigration (Cass. com., November 20, 2007, n°05-15.643).
In order for the denigration to be wrongful, it must be public (communication on the Internet, in the press, etc.).
Indeed, it has been ruled that in the absence of broadcasting to the public there was no denigration (Cour d’appel de Paris, November 7, 2012, n°11-05.382).
However, as soon as such a document is made accessible to a third party, there is denigration (Cass. com., July 3, 2001, n°98-18.352 – concerning denigrating remarks made by the manager of a company transcribed in the appendices to the annual accounts which can be consulted by any person requesting a copy).
Collective attacks can also constitute denigration.
Case law has condemned certain denigrating advertisements which, without targeting a specific company, target several companies or groups of companies.
Denigration is most often directed against :
- A company’s business practices (e.g., blaming the company for the way it does business – its sales processes, its after-sales service, etc.) ;
- The manufacturer of a product;
- The product itself (e.g., on the adverse effects of its use).
In the absence of a special regime, the common law liability regime of article 1240 of the Civil Code applies to disparagement: there must be a fault, damage and a causal link.
FAULT: The intention to harm
The fault will be characterized as soon as the acts exceed the right to criticism under the freedom of expression.
To assess the fault constituting denigration, the judge will always weigh freedom of expression, as well as the right to criticism and the right to information with the principle of tort liability.
The jurisprudence has set as a condition the intention to harm.
If this intention is demonstrated, it implies that the freedom of expression and the right to information have been exceeded: the aim is no longer to inform but to discredit.
The intention to harm is expressed in particular by the desire to ” undermine the brand imageof a company or a designated or identifiable product in order to divert customers […] from the targeted company, whether or not it is a competitor ” (Cour d’appel de Versailles, September 9, 1999, No. 1998-2345; Bordeaux Court of Appeal, March 4, 2021, No. 20-02.738).
However, this condition remains flexible because it is not necessary that the author of the denigration be in a competitive situation.
PREJUDICE: The discredit
The damage suffered by the person targeted by the denigration may be material (for example, commercial damage) but is above all moral.
In the first instance, the prejudice will naturally be moral in that the denigration leads to an attack on the image of the natural person or the brand image of the legal person.
This infringement may result in a material loss characterized in particular by a reduction in clientele and sales.
It is necessary to justify that the discredit suffered by the person comes from the reproach that has been made.
As soon as these three elements are demonstrated (fault, prejudice, causal link between the fault and the prejudice), the victim of the denigration is likely to obtain from the Court the condemnation of the opposing party in compensation for the damage suffered as a result of the acts of denigration.
However, the Courts take into account certain elements of defense which will be considered as allowing the author of the denigrating remarks to free himself from his responsibility.
Point on the exception of truth in the case of a court decision
The fact that the author of the denigration can demonstrate the accuracy of the reproach and the facts revealed is not always sufficient to exonerate him from his responsibility.
Thus, the judges were able to consider that: ” The disclosure of information likely to discredit a competitor constitutes denigration, regardless of whether it is accurate. ” (Cass. com., May 7, 2019, n°17-16.774).
However, when the truthfulness of the disparaging remarks is established in a court decision, and the remarks refer to the decision in question, this can be considered a case of exoneration.
The Courts will proceed, in view of the latest jurisprudence, to a case-by-case assessment in order to determine whether or not the disclosure of this decision by a third party is made with moderation, which will allow the author to escape any condemnation, or is on the contrary embellished with unpleasant and disparaging remarks, in such a hypothesis the responsibility of its author on the basis of disparagement could be considered.
Point on humorous criticism
Humor can also be used to justify statements that might at first appear to be denigrating but which will consequently fall under the right to free criticism.
It is therefore possible to denigrate a brand if the criticism is justified by a legitimate interest, such as public health, humorous parody or polemical use outside of business life.
This is what the “Cour de cassation” has held in several decisions concerning disparaging remarks about a car brand made on “Les Guignols de l’Info ” (see in particular – Cass. ass. plen., July 12, 2000, No. 99-19.004).
However, the “Cour d’appel de Paris”, in a decision dated September 24, 2021, ruled that:
“the violent value of the definitive expression and without any other commentary in the form of a slogan ‘What is this shit” It is necessary to quickly throw it in the fire’ exceeds the humor and the derision that the right of free criticism included in the freedom of expression could authorize on the occasion of the launching of the first magazine, and characterizes the act of denigration […] “. (Cour d’appel de Paris, September 24, 2021, n°19-17.218).
Judges assess on a case-by-case basis whether the main purpose of the denigration is to discredit, decry or belittle a brand and its products, in which case the tort liability of the author of the comments could be validly engaged.
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