Dr. Laurent Pech is Jean Monnet Lecturer in EU Public Law at the National University of Ireland, Galway. He has published extensively on freedom of expression and recently published “Liberté d’expression: Aperçus de droit comparé” in JurisClasseur Communication (Paris: LexisNexis, 2010) and “The Law of Holocaust Denial in Europe” in L. Hennebel and T. Hochmann, Genocide Denials and the Law (Oxford University Press, 2011).
(Author’s disclosure: In March 2010, he produced a letter (“attestation”) in favor of Prof. Weiler, in which he argued that the French court lacked jurisdiction and should sanction the plaintiff for having artificially selected the French criminal system to pursue her defamation action)
According to Article 11 of the French Declaration of the Rights of Man and of the Citizen of 16 August 1789, the right to free expression of ideas and opinion is one of the most precious human rights. This is not to say, of course, that freedom of expression is an absolute right. Indeed, Article 11 also provides that everyone may “speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”
This is exactly what happened in relation to the right to reputation. In 1881, the French Parliament accepted that freedom of expression may be restricted in order to protect reputation. According to Article 29 of the Freedom of the Press Act of 29 July 1881, “It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged …” Whilst the French 1881 Act is criminal legislation, a person who makes a statement that is defamatory of private individuals can “only” be liable on conviction to a fine of 12,000 euro (prison sentences are still an option in some cases, for instance, defamatory statements motivated by racial hatred). Finally, it may be worth mentioning that the 1881 Act provides that alleged victims of defamatory allegations must first initiate legal proceedings against publication directors or publishers (in our present case, Prof. Weiler in his capacity as Editor in Chief of the European Journal of International Law and its associated Book Review website), before eventually suing the authors of the litigious statements, for offences committed via the press (or any other media according to a 1982 Act).
It would be difficult to deny that the French Freedom of the Press Act has had a bad name. In a few words, it is regularly criticized for being an archaic piece of legislation that fails to appropriately take into account the European Court of Human Rights’ case law on the right to freedom of expression (see e.g. Resolution 1577 (2007), Towards decriminalisation of defamation of the Parliamentary Assembly of the Council of Europe, available here). It is also not unusual for the European Court of Human Rights to censure the French courts’ interpretation and application of the 1881 Act. The judgment of the Tribunal de grande instance de Paris in the defamation case brought against Prof. Weiler, as editor in chief of the EJIL and its associated book review website (see here) , by Dr. Calvo-Goller is unlikely, however, to disappoint those who feared an undue restriction of academic freedom and potential criminal prosecution in France for any publication made available online. I will spare readers of this blog an exposé of the facts at the origin of the plaintiff’s action (for the full text of the judgment and a summary see here), to focus on the jurisdictional issue. I hope readers will forgive me for spending some time discussing the principles governing the territorial applicability of French criminal law but it is important to do so in order to realize that that the French Court was able to hold itself territorially incompetent only because of a procedural error committed by the complainant. The judgment makes nevertheless clear that had the Court found itself competent, Dr. Calvo-Goller would not have been able to prevail on the merits. Indeed, when examining Prof. Weiler’s counterclaim that the plaintiff’s action amounts to a procedural abuse, the Court indicates that the bad faith of the plaintiff is established as it is evident, on the one hand, that Dr. Calvo-Goller engaged in “forum shopping,” and, on the other hand, that the litigious book review does not go beyond “the limits of academic criticism.” The Court’s explicit and unusually strong reliance on the notions of forum shopping and academic freedom clearly indicate that this judgment is intended to discourage anyone from ever lodging a similar complaint with a French criminal court. Read the rest of this entry…