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Defamation

Verified 01 octobre 2020 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

Defamation is an allegation or imputation of a fact that is prejudicial to the honor and consideration of a person. Defamation can be racist, sexist, homophobic. It falls under a specific procedure to protect freedom of expression.

A defamation is the allegation or imputation of an act that is prejudicial to the honor or consideration of a person. It does not matter whether the fact in question is true or false, but it must be precise enough to be the subject of an examination and of an adversarial debate without difficulty. It must be possible to answer the question with a yes or no: « Did such a person do so? » ?

The act in question may be the commission of a criminal offense, such as, for example, the falsification of a diploma...

There is defamation even if the allegation is made in disguised or dubious form, or if it is implied. For example, if the author uses the conditional. Defamation is also characterized if the allegation is directed at an unnamed but identifiable person (e.g., if the function is given).

If the charge is not verifiable, the allegation is the insult..

Public Defamation

Public defamation is a defamation that can be heard or read by a public outside the perpetrator, his victim and a restricted circle of individuals connected to the perpetrators. This is the case of statements made in the street, published in a newspaper or on a website.

Comments on a social network can also be considered as public defamation. Depending on the lock chosen by the account holder, the comments made can be accessible to any Internet user or to a more or less restricted circle offriends..

If the speech is made available on a public account, it is a public slander.

The fact that a defamation was pronounced in a closed place does not necessarily make it a non-public defamation. Cries in a building yard, because they can be heard by all the occupants (who do not necessarily know each other) and their guests, constitute a public defamation.

Non-public defamation

Non-public defamation refers to allegations made:

  • by the perpetrator to the victim without any third person present (e.g. in an SMS)
  • or in front of a small circle of people with similar interests, whether or not the victim is present. Witnesses all have a common bond. This link can be professional, personal... For example, an insult thrown during a social and economic committee is not public, as it is pronounced before a limited number of persons belonging to the same body.

However, a libel between 2 persons against another person not present, and in a confidential context (example: private mail), is not punishable by criminal justice. For example, if an employee defames his employer in an SMS sent to another colleague.

In some cases, defamation on a social network may be considered non-public. If the defamation was broadcast on an account accessible only to a limited number offriends selected by the author of the remarks, it is a non-public defamation.

If you wish to have a content removed from the Internet, you can make a request to the author of the content, then to the site host and finally to the court.

The procedure varies depending on whether it is a publication or a comment on a publication.

For a publication

You must first contact the author of the content, who is the website manager.

If the site manager refuses to remove the content, you must contact their host. The host's contact details must be indicated on the website.

Many hosting companies, such as video sites, set their own conditions for removing content, in particular because of copyright infringement or offensive images. They have specific reporting mechanisms.

If the hosting company does not remove the content reported in accordance with its own procedure, you can report it in a judicial framework. This will allow you to take legal action later.

To report content to a hosting provider in a court setting, you must follow a specific procedure.

Your request must include the following:

  • Your name, first name and e-mail address (not required if you are logged on to the site at the time of notification and your credentials are already registered)
  • Description of the disputed content, its precise location on the site and, if possible, the e-mail addresses that made it accessible
  • Legal grounds for removing content (law apparently violated by content)
  • Copy of 1mother request for withdrawal addressed to the author or proof of impossibility to contact him (it is not necessary for offenses the most serious, such as terrorism, pedophilia, crimes against humanity)

You will have to make your request via a registered letter with acknowledgement of receipt. You can ask for a lawyer's help.

Who shall I contact

You can attach screenshots of the contents realized by a bailiff.

If you report content knowingly knowing that it is not illegal, you could face up to 1 year in prison and €15,000 fine.

If you have used this procedure and the host does not quickly remove the content (by explicit refusal or by not responding to you), you can file against him.

The complaint will be based on the fact that the offending content is against the law (insults, racist remarks, homophobes, sexism...).

  FYI : in case of emergency and obvious harm, you can request a referral to have content removed by the host. However, the latter will not be criminally punished.

For comment

You should contact the person in charge of the site or social network where the comment is located.

If the person in charge of the site or the social network refuses to remove the comment, you should contact their host. The host's contact details must be indicated on the website.

Many hosting companies, such as video sites, set their own conditions for removing content, in particular because of copyright infringement or offensive images. They have specific reporting mechanisms.

If the host does not withdraw the comment reported in accordance with its procedure, you can send it a registered letter with acknowledgement of receipt. You can ask for a lawyer's help.

Who shall I contact

You can attach screenshots of the contents realized by a bailiff.

Your withdrawal request must be as specific as possible: relevant offenses, link to the offending comment, ...

If the site manager does not delete the comment quickly, you can file against him for the offense concerned.

  FYI : in case of emergency and obvious harm, you can request a referral to remove a comment.

Procedure

The procedure to be used depends on the knowledge (or lack thereof) of the perpetrator.

You know who said it

The person to whom the complaint relates must be the author of the defamatory remarks.

However, if the comments were broadcast on a medium (newspaper, website, radio...), it is the director of the publication who is considered the main author. The director of the publication is the media manager. If the editor of the publication is a person distinct from the author of the offending remarks, the latter will be prosecuted as an accomplice. Each journal must provide the name of its publisher. This rule also applies to professional websites, but not to personal amateur blogs.

The victim can only sue a natural person and not a legal person (a union, a company...). Even if the publication in question is published on behalf of the company or union.

If the defamation was pronounced on a websitethe victim must first prosecute the perpetrator of the remarks and not the site host..

The victim may apply directly to the court with a direct quote.. To use this procedure, you must know the contact information of the person you are targeting.

In this case, you must then collect the evidence yourself. All evidence shall be admitted by the court: screenshot, audio recording.....

The citation must indicate what exactly is being said and to what offense. The victim may seek legal assistance.

It is not enough to sue for an entire blog post, the quote must indicate which specific passages are defamation, and which are, possibly, public insult, by making the legal demonstration of the complainant's allegations.

The court cannot do this work of legal demonstration of the offense in place of the plaintiff, except in cases of racial, religious, sexist, or homophobic defamation. Thus, outside of these hypotheses, if the quote is not precise enough or if it turns out that the reason for the complaint has been mischosen, the victim will lose his trial.

The court may also draw up its own proceedings against the perpetrator. In this case, you must file a complaint against him, via a simple complaint, or a complaint with civil party.

You must go to a police station or a gendarmerie brigade.

You cannot be denied receipt of the complaint.

The complaint is then transmitted to the public prosecutor.

You can also file a complaint by mail.

You can lodge a complaint directly with the public prosecutor. We need to send free paper letter the court of the place of the offense or the place of residence of the offender.

The letter must include the following:

  • Civil status and full contact information (address and telephone number) of the complainant
  • Detailed account of the facts, date and place of the offense
  • Assumed author's name if you know him (otherwise the complaint will be filed against X)
  • Names and addresses of potential witnesses to the offense
  • Description and provisional or final injury estimate
  • Evidence: medical certificates, work stoppages, various invoices, findings .....
  • Willingness to take part in civil proceedings

Make a complaint to the public prosecutor

Directorate of Legal and Administrative Information (Dila) - Prime Minister

You can send your complaint by registered letter with acknowledgement of receipt or by simple letter. You can also file your complaint directly at the court reception. In all cases, a receipt will be given to you as soon as the public prosecutor's office has registered your complaint.

A complaint with the filing of a civil suit may be filed directly in the event of a public insult, and only after the filing without further action of a simple complaint in the case of a non-public insult.

The purpose of the investigation following the lodging of a complaint is to establish the facts, without characterizing them as criminal. For example, investigators will verify whether the targeted person is the author of the blog and not whether his comments were unjustified.

  FYI : in the event of an emergency, referenced can be used (for example, to request the removal of a video published on the internet).

You don't know him

If the perpetrator is unknown, the victim can still file a complaint (for example, if the perpetrator uses a pseudonym).

In this case, you must file a complaint against X, whether it is a simple complaint, or a complaint with civil party.

You must go to a police station or the gendarmerie of your choice.

The police or gendarmerie are obliged to register the complaint.

The complaint is then transmitted to the public prosecutor to decide on the follow-up (investigation, classification without follow-up...).

If you do not know the author of the facts, you can fill out a pre-complaint online before moving.

You will then get an appointment and the police or gendarmes will already have the elements of your complaint when you arrive.

Online Pre-Complaint

Ministry of the Interior

You can also file a complaint by mail.

You can lodge a complaint directly with the public prosecutor. We need to send free paper letter the court of the place of the offense or the place of residence of the offender.

The letter must include the following:

  • Civil status and full contact information (address and telephone number) of the complainant
  • Detailed account of the facts, date and place of the offense
  • Assumed author's name if you know him (otherwise the complaint will be filed against X)
  • Names and addresses of potential witnesses to the offense
  • Description and provisional or final injury estimate
  • Evidence: medical certificates, work stoppages, various invoices, findings .....
  • Willingness to take part in civil proceedings

Make a complaint to the public prosecutor

Directorate of Legal and Administrative Information (Dila) - Prime Minister

You can send your complaint by registered letter with acknowledgement of receipt or by simple letter. You can also file your complaint directly at the court reception. In all cases, a receipt will be given to you as soon as the public prosecutor's office has registered your complaint.

A complaint with the filing of a civil suit may be filed directly in the event of a public insult, and only after the filing without further action of a simple complaint in the case of a non-public insult.

The purpose of the investigation following the lodging of a complaint is to establish the facts, without characterizing them as criminal. For example, investigators will verify whether the targeted person is the author of the blog and not whether his comments were unjustified.

  FYI : if the comments were made on the internet, you can ask a host Removing offensive content (such as a video).

Limitation period

For the court to consider the complaint, it must be filed within a certain period, starting from the date of the facts. This period after which the complaint is no longer admissible shall be called limitation period.. It starts on the date of 1mother publication of the remarks or on the date of their oral pronunciation.

General case

The limitation period is 3 months in any case.

Racist, sexist, homophobic, handiphobe defamation

Public Defamation

If the defamation has racist, sexist, homophobic or disabled motives, the deadline for prescription is 1 year..

For example, if a person is accused of having committed a theft because he or she is from such a country.

Non-public defamation

The deadline prescription is 1 year..

  FYI : in the case of a simple complaint for defamation, there is a risk of classification without action, especially for the prescription of 3 months.. The Public Prosecutor must act against the accused person before the expiry of the statute of limitations either by initiating an investigation against him or by summoning him to appear before the criminal court. Failing that, the facts will be prescribed and the complaint will be dismissed, even if it was filed in a timely manner.

A person accused of defamation may use the following two defenses separately or together: the exception of truth and good faith.

Proof of the truth of the words

A person accused of defamation may defend himself or herself and try to escape conviction by offering to prove the authenticity of the facts at issue. The courts may accept his request under certain conditions of substance and form. This defense is possible in matters of public defamation as well as non-public.

The proof of the truth of the facts must be complete, perfect, complete and linked to the defamatory imputations in all their scope, for the repressive court to pronounce the release.

Any regularly served by the parties is acceptable to the court. The defendant may thus produce evidence of a breach of the secrecy of the investigation or investigation or of any other professional secrecy.

On the other hand, a person accused of defamation who proposes to prove the truth of the facts, such as a person who does not opt for this form of proof, can always argue that the facts in question do not constitute defamation.

  Please note : the person cannot prove charges relating to the privacy of the complainant unless the person's comments relate to a charge of sexual offense against a minor.

Good faith

The accused may also argue his good faith. Good faith implies the cumulation of 4 criteria:

  • Caution and measurement in expression, without exaggeration in the subject
  • Lack of personal conflict with the victim
  • The presence of a legitimate purpose: inform about a health scandal, for example
  • The seriousness of the investigation, distinct from the truth of the remarks. The author's accusations, whether he is a journalist or not, must be based on solid facts, even if he was wrong in the end. He has to prove that he did not make these accusations randomly or deliberately lie.

General case

Public Defamation

Public defamation is punishable by a fine of €12,000..

Non-public defamation

Non-public defamation is punishable by a fine of €38 maximum.

Racism, sexism, homophobia, disability

Public Defamation

Public defamation is punishable by 1 year in prison and €25,000 fine.

Non-public defamation

Non-public defamation is punishable by a fine of €1,500 maximum.

Against an elected official, a policeman or a magistrate

Public Defamation

Public defamation against a local elected official, a parliamentarian, a policeman, a policeman or a magistrate on account of his duties is punishable by a fine of €25,000.. The penalty shall apply if the victim is a labor or customs inspector or any other public official because of his or her duties.

Non-public defamation

Non-public defamation against a local elected official, a parliamentarian, a policeman, a policeman or a magistrate on account of his duties is punishable by a fine of €38 maximum.