FRENCH REPUBLICIN THE NAME OF THE FRENCH PEOPLE
STOP N ° 2
On the sole means:
Whereas, according to the judgment under appeal (Versailles, October 16, 1997), an article entitled “le cas X …: On ne badine pas avec la mort” appeared in the newspaper “Z …”; who considered certain passages of this article to be faulty as bringing against their deceased son accusations giving credence in the minds of readers to the idea that he was an individual devoid of any moral conscience, responsible for the death that had already occurred or coming from several victims by transmission of the AIDS virus, Mr. and Mrs. X … asked MY … and the newspaper publisher for compensation for the moral damage suffered as a result of this publication:
Whereas the consorts X … reproach the judgment for having rejected their claims then, according to the means,
that the immunity resulting from article 34 of the law of July 29, 1881 for the benefit of the author of a defamation directed against the memory of a dead person, who would not have intended to infringe the The honor or consideration of the living heirs, spouses or legatees only concerns criminal liability and cannot be extended to civil liability which can always be brought into play when the conditions required to make article 1382 applicable of the Civil Code are met, so that by ruling on the sole basis of article 34 of the law of 1881, while noting that MY … had breached the obligation imposed on the journalist to verify his information, the court of appeal violated the said Article 34 by misinterpretation and thearticle 1382 of the Civil Code by refusal of application;
But whereas the abuses of freedom of expression provided for and punished by the law of July 29, 1881 cannot be remedied on the basis of article 1382 of the Civil Code; that having retained that the publication of the disputed remarks fell within the provisions of article 34, paragraph 1, of the aforementioned law, the court of appeal rightly decided that the spouses X … could not be admitted to prevail of article 1382 of the said Code ; that the plea is unfounded:
FOR THESE REASONS :
DISMISSES the appeal.
Means produced by SCP Lyon-Caen, Fabiani and Thiriez, lawyer advising, for spouses X …
The contested nursing judgment is accused of having decided that the remarks made by Y … could not authorize spouses X … to act on the basis of article 1382 of the Civil Code, in the absence of intention of the author of the contested remarks to undermine their own honor and self-esteem;
FOR THE REASONS THAT freedom of expression, a principle enacted by the Declaration of the Rights of Man and of the Citizen and by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms cannot be restricted or sanctioned only by specific legal provisions; that these provisions are those of the law of July 29, 1881 on the freedom of the press; that it follows from article 34, paragraph 1, of the law of July 29, 1881 that defamations and insults directed against the memory of the dead expose their authors to the penalties provided for in articles 31, 32 and 33 only in cases where the authors would have intended to undermine the honor or the consideration of the living heirs, spouses or legatees; that in the absence of such intention, said defamations or insults are not punishable, and can at the most give rise, on the part of the heirs, spouses and universal legatees, to the exercise of the right of reply provided for in article 13 of the same law ; that it should be deduced from this that they could not then authorize the same living heirs, spouses and legatees to bring civil action for compensation for the damage caused on the basis of articles 1382 and 1383 of the Civil Code, such action amounting to seeing the sanctioning of acts which the aforementioned article 34 considers impunisable, and as such not at fault; that the disputed remarks, in which MY … included an allegation of which he is moreover unable to adduce proof, as the Court has rightly noted, contain the imputation of a precise fact undermining the honor and the consideration, and therefore constitute a defamation directed against the memory of X …, defamation which falls under the application of article 34, paragraph 1, of the law of 29 July 1881; that by such remarks, MY … did not intend to undermine the honor and the consideration of the parents of X …; that it follows that they cannot authorize them to act on the basis of Article 1382 of the Civil Code; that the failure of MY … the obligation made to the journalist to verify its information, does not constitute in truth a fault distinct from the imputation defamatory litigious, and in any case sanctionable as autonomous; that in addition spouses X … have at no time intended to avail themselves of the invasion of the privacy of their deceased son, so that they cannot rely on case law decisions having upheld a claim for compensation made by heirs on the basis of article 9 of the Civil Code; that definitively, no civil fault, independent of defamation, not being able to be retained against MY …, the demand for compensation spouses X … will be rejected;
WHEREAS the immunity decreed by article 34 of the law of 1881 for the benefit of the author of remarks detrimental to the memory of a dead person who would not have intended to infringe upon the honor or the consideration of the living spouses, heirs, or legatees only concerns criminal liability and can in no way be extended to the civil liability of the author of the disputed comments, which can always be brought into play as long as the required conditions are met. to make applicable article 1382 of the Civil Code are fulfilled; that ruling on the sole basis of article 34 of the law of 1881 while the spouses X … had requested compensation for their own damage on the basis of article 1382 of the Civil Code, the court of appeal of Versailles,
Publication: Bulletin 2000 AP N ° 8 p. 13
Contested decision: Versailles Court of Appeal, 1997-10-16
Titles and summaries DEFAMATION AND INJURIES – Defamation – Civil action – Damage – Heirs of the defamed person – Claim for compensation – Article 1382 of the Civil Code – Application (no) .
The abuses of freedom of expression provided for and punished by the law of July 29, 1881 cannot be remedied on the basis of article 1382 of the Civil Code.
This is the case with the attack on the memory of a dead person committed by the publication, in a newspaper, of a writing the content of which falls within the provisions of Article 34, paragraph 1, of the said law (judgments nos. 1 and 2).
DEFAMATION AND INJURIES – Defamation – Civil action – Damage – Spouse of the defamed person – Claim for compensation – Article 1382 of the Civil Code – Application (no)
LEGAL ACTION – Legal basis – Powers of judges – Precise basis – Defamation – Application based on article 1382 of the Civil Code – Possibility (no)
DELICTUAL OR QUASI DELICTUAL LIABILITY – Damage – Reparation – Persons who can obtain it – Heirs – Defamation – Heirs of the defamed person – Request based on article 1382 of the Civil Code – Possibility (no)