Distinction
In French law it is essential to make a distinction between:
Statements of facts
If a disputed statement or publication claims facts, it is called a defamation. The author or publisher can defend himself by proving before the court that these facts are indeed true. This is called the “exception of truth”.
The author can also defend himself by proving his good faith, which requires four cumulative conditions:
- Caution and moderation in expression, without exaggeration
- The absence of personal conflict with the victim
- The presence of a legitimate aim (e.g., inform about a health scandal)
- The seriousness of the investigation, which is distinct from the truth of the statements. Accusations made by the authors, whether a journalist or not, must be based on solid facts, even if they are ultimately mistaken. They must prove that they did not make these accusations randomly or deliberately lie.
These four conditions have evolved due to the case law of the European Court of Human Rights. The French Court of Cassation therefore relaxed these requirements and admitted that the benefit of good faith should be recognised if the disputed statement deals with a subject of general interest.
Opinions
If a disputed statement or publication is an insulting expression, such as an opinion, it is called a public insult in French law. The author cannot defend himself by proving that the statement was true because insults do not contain any facts that can be verified. The excuse of good faith is not possible either for this kind of statement. The author of a public insult can only defend himself by showing that he/she made this statement quickly and without prior reflexion in response to a previous provocation from the victim, i.e., insulting words from the victim that directly harmed the author’s honour.
Facts
Facts are information that can be objectively verified as true or false. Therefore, if you state facts that are challenged by another person as false, you will have to prove that these facts are true in order to defend yourself. The national courts must give you the opportunity to demonstrate that there is a sufficient factual basis for your disputed statement, otherwise this could violate your freedom of expression.
example If you publicly declare that someone has given a bribe to the city mayor to win a public tender for the former’s company, you will have to prove that this statement is true if you wish to escape a sentence.
Opinions
An opinion or value judgement is your subjective opinion about a certain event or person. This opinion is created on the basis of information available to you. A value judgement is subjective and therefore no one can objectively verify or prove whether it is true or false. This is why it is considered to be an insult in French law if it is intended to offend someone.
example If you publicly criticized someone and called him/her “a liar”, it is impossible for you to prove that your opinion is true.
Factual basis
The degree of factual basis depends on how serious the allegations are and should be assessed in every case. The more serious and precise the allegation, the more accurate and reliable the factual basis must be.
example If you publicly state that someone is a thief, you should have a solid factual basis to substantiate and prove the truth of your statement otherwise you may be sued for defamation.
Assessment
To distinguish facts (defamation) from opinions (insult), it is important to take into account not only the literal meaning of the words, but also:
- the context of the statements
- the way the audience perceived them
- the meaning attached to them by the author
In many cases it is difficult to assess whether a certain statement is an insult or a defamation. In cases where a value judgment is close to a statement of fact, the author of statements or publisher may be allowed to defend himself by showing that the statement was true.