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.
1. Territorial applicability of French criminal law
In accordance with the traditional principle of territoriality, Article 113-2 of the French penal code provides that French courts can apply national criminal law “to all offences committed within the territory of the French Republic” and that “an offence is deemed to have been committed within the territory of the French Republic where one of its constituent elements was committed within that territory.” By exception to the principle of territorial jurisdiction, French criminal law can also be applicable for certain offenses committed outside the French territory. For instance, Article 113-7 provides that “French Criminal law is applicable to any felony, as well as to any misdemeanour punished by imprisonment, committed by a French or foreign national outside the territory of the French Republic, where the victim is a French national at the time the offence took place.”
Dr. Calvo-Goller could not rely on this provision as it only concerns offenses punishable by imprisonment. As a lawyer educated in France, she must have known, however, that French courts have adopted a very broad and flexible understanding of the rather open-ended concept of “constituent elements” laid down in Article 113-2 of the penal code. In the context of defamation actions against newspapers and other media, this means essentially that any act of diffusion of any publication is understood as constituting a “constituent element” triggering the application of French criminal law regardless of the place of establishment of the publication, the language used, etc. Anyone alleging a violation of his/her right to reputation can thus initiate legal proceedings against inter alia the editor-in-chief of the relevant publication before any French court as long as one proves that it has been distributed in the territorial jurisdiction of the court. Critically, these principles have been extended to national as well as foreign online publications. In other words, French courts work under the following assumption: provided that the litigious online content is accessible from France, the relevant offence may be deemed to have been committed within the French territory (Art. 113-2) and all French courts are therefore territorially competent.
It follows that French criminal courts – and this is largely true still as regards complex civil torts committed online – are happy to assert their territorial jurisdiction (and automatically apply French criminal law) over any foreign online content which may constitute an offense under French law regardless of whether the publisher or individual may be, for instance, protected under the First Amendment to the US Constitution (see e.g. the complaint brought against Yahoo’s CEO for public condoning of war crimes by a French association of Holocaust survivors on the ground that French people could gain access to the US-based Yahoo!’s auction page where Nazi memorabilia was on offer, something prohibited under French law: Court of Appeal of Paris, 17 March 2004: Juris-Data no. 252592, confirming the territorial jurisdiction of the first-instance criminal court).
Following academic criticism (see e.g. my study, “Conflits de lois et compétence internationale des tribunaux français” in LexisNexis JurisClasseur Communication, no. 3000) French civil courts have demonstrated more willingness to require from plaintiffs, in complex online tort cases, that they prove that non-resident defendants have minimum contacts with the forum state or deliberately targeted the French territory. By contrast, French criminal courts still readily admit their territorial jurisdiction with respect to any litigious online content available from France. Yet, in the present case, the French Court held itself incompetent to rule on the criminal defamation case brought against Prof. Weiler. It does not do so, however, on the grounds that the incriminated website (www.globallawbooks.org) is not based in France or that the litigious book review was written in English, etc., but merely because the plaintiff did not seek to establish before 27 July 2007 that the website could indeed be accessible from France and was effectively consulted by French residents whereas it is well established that the book review was first published on 3 April 2007. The problem, from the plaintiff’s point of view, is that Article 65 of the Law of 29 July 1881 lays down the principle of a three-month period from the first day of publication beyond which the prosecution is barred. This meant here that the prescription date was 3 July 2007. And while the plaintiff did comply with this requirement by filing a complaint on that very day, Dr. Calvo-Goller appears to have failed to realise that a “constat d’huissier” was also required in this case, that is, a formal document established by a judicial officer in which he/she would have formally attested that the litigious book review was indeed freely accessible from France before 3 July 2007.
This procedural misstep offered the Court an easy way out. Yet and as the Court made clear when dealing with the defendant’s counterclaim for reparation on ground of procedural abuse committed by the plaintiff, the book review did not contain any defamatory utterance. Accordingly, had the Court held itself territorially competent to rule on the merits of the action brought by Dr Calvo-Goller, the action would have been dismissed on the basis of Article 470 of the code of criminal procedure (“If the court considers that the matters prosecuted do not constitute an offence contrary to criminal law or that the matters are not proved, or that they is not imputable to the defendant, it shall dismiss the prosecution”).
2. Procedural abuse committed by the plaintiff
By asking the Court to rule on the alleged abusive nature of the plaintiff’s action, Prof. Weiler offered it the chance to briefly address the nature and scope of the right to freedom of expression for academics. Before discussing this point, the Court’s strident condemnation of the plaintiff’s decision to engage in what the Court rightly refers to as “forum shopping”, must be emphasized. This term, which is regularly used by scholars, is neatly defined by the Court as “a worldwide search, for the legal system which seems the most favorable to the claim made by the person initiating legal proceedings, and which places his or her opponent, as much for legal reasons as for practical reasons — geographical or cultural remoteness — in the least favorable situation.” This may well be the first French judgment so clearly defining the concept of forum shopping. Worth noting is the Court’s harsh verbal condemnation of (i) the plaintiff’s decision to opt for the French legal system for financial considerations and reasons of expediency (her French citizenship being the only link with the forum state in this case), and (ii) the plaintiff’s bad faith as she initiated a criminal action for defamation whereas it is plain that that the book review does not contain defamatory statements and that she should have known better considering her profession and the fact that she studied law in France. In the light of the above, the Court sentenced the plaintiff – a rare occurrence in defamation actions – to the payment of damages (€8,000) to the defendant on the basis of Article 472 of the code of criminal procedure which provides that in the case set out by article 470 previously mentioned, “where the civil party initiated the prosecution himself, the court rules by the same judgment on any application for damages made by the person discharged against the civil party for abuse of the right to bring a civil party petition”.
But let us leave aside the procedural aspects to focus on the Court’s brief clarifications on the nature and scope of the right to freedom of expression for academics. According to the Court, authors of intellectual works necessarily expose themselves to criticism and must tolerate criticism from academics as long as that the opinions being expressed do not go beyond the limits of academic criticism, which is an essential element of academic freedom and freedom of expression. These explanations, albeit welcome, fail to make clear several important elements: The status of the right to freedom of expression under French law; the link between academic freedom and freedom of expression and finally, what exactly are the “limits” of academic criticism.
To put it concisely, the sole right to freedom of expression is considered a fundamental right under French constitutional law. However, La liberté de recherche is not explicitly protected by any constitutional text. It may have been more appropriate therefore for the first instance court to explain that freedom of research is constitutionally guaranteed on the basis of the case law of the French Constitutional Court (see judgment no. 94-345) as it constitutes one aspect of the general right to freedom of expression. To further mark the importance of academic freedom and make clear its multifaceted nature, the Court should also have relied on the case law of the European Court of Human Rights (see Sorguç v. Turkey, 23 June 2009, application no. 17089/03, § 35, where the Court “underlines the importance of academic freedom, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction”) and referred to Article 13 of the EU Charter of Fundamental rights (“The arts and scientific research shall be free of constraint. Academic freedom shall be respected”). As regards the limits of academic speech, a reference to Article L.952-2 of the French code of education would have been welcomed. Indeed, this provision, which itself derives from a 1984 Act, clarifies that university professors and researchers are guaranteed “full independence” and “benefit from a complete freedom of expression in the exercise of their teaching functions and their research activities” provided that they act in compliance with the traditional academic principles of tolerance and objectivity.
In other words, academics’ freedom of expression is normally absolute when they express themselves on matters of academic or public concerns provided they do so in compliance with academic canons and ethics. Conscious of the importance of preserving academic freedom in a democratic society, French courts have been extremely reluctant to become the judges of scientific truth and intervene in the context of academic debates however heated or controversial the topic and however harsh the criticism. Academics must nevertheless act within the limits mentioned above, which means, for instance, that one can be dismissed for inciting to racial hatred in his academic writings. Additional presumptions may be applicable when, for instance, law professors are prosecuted for defamatory statements. As members of a learned profession, they are expected for instance to be familiar with what constitutes a defamatory statement and courts are less likely to be accommodating when law professors have recourse to malicious, offensive or inflammatory language. They must also realize that freedom of expression, if I dare say, works both ways, which means that they should tolerate criticism particularly in relation to their publications or when they willingly defend controversial views or participate to a public debate (principles reaffirmed in a recent judgment of the European Court of Human Rights condemning the French courts’ interpretation whereby civil servants, in this case, a university professor, can only be subject to general and theoretical criticism: 22 avr. 2010, Haguenaeur c/ France, application no 34050/05).
In the present case, any reasonable observer could have rapidly concluded that Prof. Weigend – the author of the book review – did not offend the principles of tolerance and objectivity by acting, for instance, in bad faith but merely expressed some critical opinions which did not constitute factual assertions damaging the plaintiff’s honor or reputation, however harsh or unfounded. One may only hope that this French judgment will once and for all discourage any scholar from using, or rather abusing, the judicial system to silence their colleagues’ negative view of their work.