To What Extent is it Acceptable to Limit Freedom of Expression to Protect Reputation?

Lindon, Otchakovsky-Laurens and July v France [2007] ECHR 21279/02, 36448/02 (22 October 2007)

Summary

To what extent is it acceptable to limit the right to freedom of expression to protect a person's reputation?  A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question.

Facts

Lindon authored a novel, Le Procès de Jean-Marie Le Pen (‘Jean-Marie Le Pen on Trial’), a fictional work informed by the facts of two real-life murders committed by militants from the far-right French Front National.  Through the narrative of a fictional murder trial – a ‘vector for direct criticism’ of Le Pen – the book focuses attention on Le Pen’s role, as the Front National’s leader, in the murders.

Under the relevant domestic law, a statement that ‘impugns the honour or reputation’ of a person is defamatory, and publication of defamatory statements is proscribed.  The Paris Criminal Court convicted Lindon and his publisher (the first and second applicants) under the domestic law, finding a number of statements in the book to be defamatory, and rejecting the defence that the statements were published in good faith.  Subsequently, a newspaper published an opinion article that reproduced the defamatory statements, asserting they were not defamatory.  The newspaper publisher (the third applicant) was separately convicted under the domestic law.  Each of the applicants was ordered to pay fines of about €2,300 and damages of about €3,800 to each of Le Pen and the Front National.

Decision

The European Convention guarantees the right to free expression.  Under art 10(2), the right may be ‘subject to such ... restrictions and penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...’.  The applicants pleaded the relevant domestic law violated art 10.

The domestic law interfered but only to the extent ‘necessary in a democratic society’

The Court rejected the applicants’ contention that the domestic law was not ‘necessary in a democratic society’.  In the Court's supervisory jurisdiction, the relevant question is whether, in the context of the case as a whole, the reasons advanced to justify interference with the right to freedom of expression are ‘relevant and sufficient’ and ‘proportionate to the legitimate aim pursued’.

The Convention guarantees the right to reputation (art 8), so it is appropriate to restrict freedom of expression to protect a person’s reputation or honour.  The Court reasoned that a restriction or penalty on freedom of expression was ‘necessary’ if there was a ‘pressing social need’.  In this matter, the Court emphasised the narrow scope for acceptable restriction of freedom of expression, because the statements:

• amounted to political speech or debate, in which freedom of expression is vital; and
• criticised a politician, being amongst a class of persons who, unlike private individuals, ‘inevitably and knowingly’ lay themselves open to close public scrutiny.

Considering ‘the virulence of [Le Pen's] speech and his extremist views’ and Le Pen’s numerous convictions for incitement to racial hatred and apologia for war crimes, in this case the European Court required a particularly high degree of tolerance.

However, the Court considered that balancing the rights to reputation and free expression, ‘regardless of the forcefulness of political struggles’, it was appropriate to ensure a ‘minimum degree of moderation and propriety’.  Given the ‘virulent content of the impugned passages’ and that the statements explicitly named Le Pen and the Front National party, the Court agreed the statements were defamatory.  The content of the impugned statements was ‘such ... to stir up violence and hatred ... going beyond ... tolerable ... political debate’ even against an extremist figure such as Le Pen.

The Court also affirmed the domestic courts’ rejection of the first and second applicants good faith defence.  The impugned statements were neither backed by a sufficient factual basis nor framed in sufficiently dispassionate language.

Four members of the Court dissented, giving considerable weight to the content of the work.  The minority distinguished works of fiction, which they argued should be afforded a higher level of protection, from reporting of fact.  The majority's approach ‘imprisoned literature in a set of rigid rules at odds with the freedom of artistic creation and expression’.  The minority also disagreed that the impugned statements constituted an appeal to hatred or violence.

The Court also upheld the third applicant's conviction.  Like political speech, freedom of the press attracted a high level of protection under art 10.  However, absent special grounds, journalists are protected under art 10 only insofar as they act ‘in good faith and on an accurate factual basis’ providing ‘reliable and precise information in accordance with the ethics of journalism’.  In the circumstances, the Court felt it had been unnecessary to reproduce defamatory statements to give a complete account of the first and second applicants’ convictions.  The article denied that the statements were defamatory ‘in spite of a finding to that effect’ and ‘overstepped the limits of permissible provocation’.

The domestic law imposed a ‘penalty prescribed by law’

The first and second applicants alleged that the application of the domestic law was not foreseeable ‘to a reasonable degree’, so their convictions were not ‘prescribed by law’.  Rejecting the argument, the Court reiterated that:

• it was acceptable to couch laws ‘in terms which ... are vague and whose interpretation and application are questions of practice’ to allow the law ‘to keep pace with changing circumstances’; and
• a law could satisfy the requirement of foreseeability even if legal advice was necessary to assess the consequences of an action.

The conclusion was ‘particularly true’ for persons carrying on professional activities, who the Court felt would ordinarily ‘be expected to take special care in assessing the risks’ of their activities.  Although the relevant domestic case law was ‘dated and rather scant’, it was incumbent on the applicants ‘to apprise themselves of the relevant [law]’ even if specialised advice was necessary.

The penalties were proportionate

Given the margin of appreciation left to domestic authorities under the Convention, the Court agreed that criminal sanctions responding to defamation are not disproportionate.  Considering the moderate fines imposed and damages awarded against the applicants, the measures taken against them were not disproportionate to the legitimate aim for which they were designed.

Implications for the Charter

The Charter’s guarantee of the right to free expression, which under s 15(3)(a) may be ‘subject to lawful restrictions necessary … to respect the rights and reputation of other persons’, is materially equivalent to the Convention provision.  Victorian courts are entitled under s 32 of the Charter to consider international courts’ judgments, and may immediately look to this decision in applying s 15, especially in interpreting:

• the Defamation Act 2005 (Vic) insofar as it modifies the defences available to, and principles for assessment of damages in, common law defamation actions; and
• the criminal defamation provisions of Part I of the Wrongs Act 1958 (Vic).

The decision is available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database.

Sam Porter, Human Rights Law Group, Mallesons Stephen Jaques