A presumption of bad faith weighs on the person prosecuted for defamation or insult.
Defamatory charges are deemed to have been made with the culpable intention of causing harm, contrary to the general principle of law which requires good faith to be presumed. This presumption was created by case law for the sake of balance between the parties, in compensation for the procedural difficulties encountered by the complainant,
The case law requiring the accused to establish his innocence or his good faith is old (Crim., January 11, 1883, D. 1884, 1, 372) and it is constant (Crim, June 24, 1920, DP 1920, 1, 48; March 16, 1948, Bull. N ° 93; January 18, 1950, Bull. N ° 23; June 12, 1987; Civ. 2, January 14, 1998, Bull. N ° 11 …).
The entry into force of the European Convention for the Protection of Human Rights and Fundamental Freedoms has not called this presumption into question. The Court of Cassation ruled that it was not incompatible with Articles 6 and 10 of the Convention since proof to the contrary can be produced and the rights of the defense are guaranteed ( Crim., March 16, 1993 ).
Correlatively, the courts have deduced the possibility for the defamator to prove his good faith and in this case to escape the sanction (Crim., July 3, 1996, Bull. N ° 283, 2nd species), the judges not having , in this regard, to replace the accused (Crim. July 8, 1986, Bull. n ° 233).
The proof of good faith is distinct from the exception of truth ( Cass. Crim. June 17, 2008)
The criteria of good faith
The criteria of good faith defined by case law are four in number and they are cumulative:
legitimacy of the goal pursued,
absence of personal animosity
seriousness of the preliminary investigation
prudence and measure in expression