Injury And Defamation On The Internet
LexInter | May 16, 2006 | 0 Comments

Injury And Defamation On The Internet

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, CRIMINAL CHAMBER, in its public hearing held at the Palais de Justice in PARIS, on May ten, two thousand and five, delivered the following judgment:

On the report of Mrs. counselor CHANET, the observations of the professional civil society LYON-CAEN, FABIANI and THIRIEZ, lawyer in the Court, and the conclusions of Mr. Advocate General DAVENAS;

Deciding on the appeal brought by:

– X … Jean-Marie,

against the judgment of the METZ Court of Appeal, correctional chamber, dated May 27, 2004, which, for public insult to a public official, sentenced him to a suspended fine of 1,000 euros, and pronounced on civil interests;

Having regard to the brief produced;

Whereas it results from the judgment under appeal that the Sud PTT Moselle union, of which Jean-Marie X … is the general secretary, posted on its website a message implicating Jacques Y …, director regional post office; that, considering himself insulted and defamed, the latter and the administration of the Post office directly quoted Jean-Marie X … before the criminal court; that the court declared the defendant guilty of the only offense of public insult to a public official; that, on appeal from the accused and the public prosecutor, the Court of Appeal upheld the judgment;

In this state:

On the single ground of appeal, taken from the violation of article 6 of the European Convention on Human Rights, articles 29, 31, 33, paragraph 2, 42, 43, 50, 53 of the law of 29 July 1881, articles 2 of the law of September 30, 1986, 93-2 and 93-3 of the law of July 29, 1982, articles 591 and 593 of the Code of Criminal Procedure, lack of legal basis;

“in that the confirmatory judgment attacked declared Jean-Marie X … guilty of public insults against MY … and condemned him criminally and civilly;

the summary judge of the Metz tribunal de grande instance, seized by Jacques Y … and the Post Office to obtain the withdrawal of the pages implicating Jacques Y … in question, gave notice to the departmental office of the Sud PTT Moselle union of the withdrawal of disputed pages; that Jacques Y … and the Post office made directly quote Jean-Marie X … before the criminal court of Metz according to the act of February 12, 2003, denounced to the public prosecutor on February 14, 2003, in order to see the latter judged to have been accused of having, in his capacity as author, in any event, publisher of the website, in Metz on December 8, 2002, insulted Jacques Y … in his capacity as director of the Moselle Post Office, facts provided for and repressed by articles 29 and 33 of the law of July 29, 1881 on the freedom of the press, () that, on the insults, the article 29 of the law of July 29, 1881 on the freedom of the press lays out that any outrageous expression, term of contempt or invective which does not contain attribution of any fact is an insult; that, while it is certain that the trade union language justifies the tolerance of certain excesses commensurate with the tensions arising from social conflicts or the violence that sometimes underlies labor relations, the fact remains that the admissible measure in such a framework and present an insulting character of the remarks such as “old poop”, “frosted”, “more barge than that you die”, “crazy doubled of a sadist is what the Post continues to maintain to the orders from the Moselle “and” it is all the same extraordinary to see that a possibly senile DLP blocks the

that not only the use of the word of Jules Lézard clearly allows the identification of Jacques Y … by the means of the initials but also the expressions qualifying the concerned of under sub-pope with the comment “of agreement, it is easy, he is not called pope, not cardinal, the grade below cardinal “relate directly in an outrageous and contemptuous manner to the patronymic name and hence to the person of Jacques Y …;

one of the offenses provided for in chapter IV of the law of July 29, 1881 on freedom of the press is committed by an audiovisual means of communication, the director of the publication will be prosecuted as the main author when the incriminated message has been the subject of ‘a fixation prior to its communication to the public; that in the present case, it should be noted that the disputed site is that of the Sud PTT Moselle union of which Jean-Marie X …, in his capacity as departmental secretary, happens to be the legal representative, this quality not being not contested by the accused; that remaining, as has rightly noted the first judge, it is as legal representative that Jean-Marie X … appeared during the order of December 19, 2002 produced debates; that the disputed remarks by their putting on line on the server hosting the site have necessarily been the subject of a fixing prior to its communication to the public; that accordingly, Jean-Marie X …, in his capacity as legal representative of the union, is the publication director of the website of the same union and sees his criminal responsibility engaged as the main author of the offenses referred to in the prevention , unimportant in this regard that the latter may not be the author of the incriminated comments or that he has not given instructions for their posting; that it is therefore necessary to confirm the judgment undertaken on the guilt; a fixation prior to its communication to the public; that accordingly, Jean-Marie X …, in his capacity as legal representative of the union, is the publication director of the website of the same union and sees his criminal responsibility engaged as the main author of the offenses referred to in the prevention , unimportant in this regard that the latter may not be the author of the incriminated comments or that he has not given instructions for their posting; that it is therefore necessary to confirm the judgment undertaken on the guilt; a fixation prior to its communication to the public; that accordingly, Jean-Marie X …, in his capacity as legal representative of the union, is the publication director of the website of the same union and sees his criminal responsibility engaged as the main author of the offenses referred to in the prevention , unimportant in this regard that the latter may not be the author of the incriminated comments or that he has not given instructions for their posting; that it is therefore necessary to confirm the judgment undertaken on the guilt; happens to be the publication director of the website of this same union and sees his criminal liability engaged as the main author of the offenses referred to in the prevention, it is not important in this regard that the latter may not be the author of the incriminated remarks or that he did not give instructions for putting them online; that it is therefore necessary to confirm the judgment undertaken on the guilt; happens to be the publication director of the website of this same union and sees his criminal liability engaged as the main author of the offenses referred to in the prevention, it is not important in this regard that the latter may not be the author of the incriminated remarks or that he did not give instructions for putting them online; that it is therefore necessary to confirm the judgment undertaken on the guilt;

“whereas, on the one hand, the presumption of criminal liability applicable only to press companies and audiovisual communication services required to appoint a director of publication cannot be extended to modes of communication which do not legally have this obligation;

“that, consequently, the judgment under appeal, which, after having stated that the communication by way of the Internet network constituted an audiovisual communication mode within the meaning of article 2 of the law of September 30, 1986, deduced that the applicant, in his capacity as legal representative of the Sud PTT union, had the capacity of publication director within the meaning of articles 93-2 and 93-3 of the law of July 29, 1982, texts moreover not referred to the prevention, without seeking if the electronic communications carried out by means of the Internet network required the designation of a director of publication, has not given a legal basis for its decision;

“while, on the other hand, Jean-Marie X … was prosecuted, according to the terms of the contested judgment, for public insults towards an individual, under the sole visa of paragraph 2 of the article 33 of the law of July 29, 1881 which punishes exclusively this offense and does not operate any referral, only the first paragraph of article 33, not referred to prevention, referring to article 31 of the law of July 29, 1881 , for the cases which it enumerates exhaustively; that it follows that by condemning Jean-Marie X … for insulting a citizen in charge of a public service, on the incorrect ground that article 33 would be fully covered prevention and would refer to article 31 of the same law, the Court unlawfully modified the content of the proceedings,and once again deprived of its legal basis decision;

“and whereas finally, and in any event, the judgment under appeal could not affirm that Jean-Marie Y …, of which it does not note that he has the quality of civil servant, had to be regarded as citizen in charge of a public service without explaining how the function of regional director of the Post office conferred on its holder the prerogative of public power required for the application of article 31 of the law of July 29, 1881 “;

Whereas the accused, who did not raise before any substantive debate the objection of nullity of the citation initiating the proceedings, cannot complain of having been declared guilty of public insult towards a public official, since the incriminated remarks denounced with the only visa of article 33 of the law of July 29, 1881 implicated the plaintiff only in his capacity of civil servant;

Whereas, moreover, to declare Jean-Marie X … guilty of public insult towards a public official, the judges of the second degree pronounce by the reasons reproduced by means;

Whereas in determining thus, the court of appeal justified its decision;

That in fact, the internet network constituting a means of audiovisual communication within the meaning of article 2 of the law of September 30, 1986 relating to freedom of communication, the criminal liability of the owner of a site and of the author of abusive or defamatory remarks broadcast on this site can be engaged under the conditions provided for by article 93-3 of the law of July 29, 1982 on audiovisual communication in its wording resulting from the law of December 13, 1985, applicable at the time when the facts have been committed;

From which it follows that the plea must be rejected;

And considering that the stop is regular in the form;

DISMISSES the appeal;

Thus judged and pronounced by the Court of Cassation, criminal chamber, in its public hearing, the day, month and year above;

Were present at the debates and deliberations, in the training provided for in article L.131-6, paragraph 4, of the Code of judicial organization: Mr. Cotte president, Mrs. Chanet advisor rapporteur, Mr. Joly advisor of the chamber ;

Clerk of the chamber: M. Souchon;

In witness whereof, this judgment has been signed by the president, the rapporteur and the clerk of the chamber;

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