In certain situations, the freedom to express yourself may be restricted to protect the reputation, honour or dignity of others.
Freedom of expression vs reputation
Publishing criticism or publicly expressing a harsh opinion may have negative consequences for someone else. Especially, when the statement is false or partly untrue. In the case of a dispute, courts can impose restrictions and sanctions for releasing information, criticism or grossly offensive and derogatory opinions if these are harmful and are false or don’t have sufficient factual basis. In this case, the freedom of expression of one person can be restricted to protect the reputation, honour or dignity of another person.
In France, there are two offences that can be used to punish those who harm the honour of others.
The first offence is defamation. In French law, a defamation is any allegation or imputation of a fact that harms the reputation or honour of another person, group or company. It does not matter whether the fact in question is true or false, but it must be sufficiently precise to be subject to verification, i.e., it must be possible to prove whether the fact is indeed true or not.
The other offence is called “an insult”. It is an insulting expression addressed to another person with the intention of offending them. If such expression is made public, it is called a public insult and is punishable in a similar way to defamation. If it is expressed in a private space, it can also be punished but much less severely. A public insult is different than a defamation because it does not contain the imputation of any fact, which means that it is not possible to verify if the statement is true or not. For example, according to the French Court of Cassation, an insulting opinion is considered an insult and not a defamation.
Factual basis
In a defamation case, the author of the disputed statement can defend himself by proving that the statement was true. The court will consider if there is a valid and trustworthy basis for the disputed statement. However, this defence, called “exceptio veritatis”, is not possible if the statement concerns someone’s private life. .
example If you publicly state that someone has cheated on their spouse, this person may sue you for defamation where their reputation is damaged. In court, you will not be allowed to prove that this statement is true because it concerns the private life of the victim.
example If you publicly state that a politician was racist due to their actions, this person may sue you for defamation. However, this time, you can defend yourself by proving that this statement is true and that you have some facts which support your statement.
Status of person & Public interest
The kinds of statements which are permissible and whether they have sufficient factual basis must be assessed in each individual case. The criticism which is permissible and the degree of factual basis supporting it also depends on the status of the person involved and the level of public interest attached to it. In the case of a public figure whose actions attract a high level of public interest, the degree of factual basis to support the statement will be evaluated less strictly than in the case of an unknown private individual.
example A statement speculating that a politician may have a conflict of interest on the basis of thin evidence is judged less strictly than a dispute involving a private individual.
Similarly, in the case of a public debate in a deliberative assembly, insulting words are much more tolerated, and freedom of expression can only be restricted in exceptional circumstances.
Lawful restrictions
Any measure or sanction imposed by the court that restricts the freedom of expression of an author or publisher must be lawful. This means the measure or sanction must be:
- provided in law
- serve the legitimate aim of protecting the reputation of others
- necessary and proportional
About this section
In this section you can read more about aspects that are important in cases of defamation.