The Internet and defamation: The issue of statutes of limitations – September 11, 2002
What is defamation? It occurs when someone makes statements about another person that the latter considers, rightly or wrongly, to be defamatory. The victim can then file a complaint, which can be submitted to various legal bodies. This can be done before the Cour d’Assises (Court of Major Jurisdiction). It should be noted that in such cases, both parties cannot speak directly during the trial; they must be represented by lawyers. This is the law. Both parties are prohibited from speaking themselves in court, even if they request it. Even worse: those who fail to appoint a lawyer won’t even have their trial date set; this can only be done through a lawyer. For those who can afford it, there’s no problem. But for those who can’t, if they can prove they have no or insufficient resources, they may qualify for legal aid. After applying, they’ll be represented by a court-appointed lawyer, paid by the state. However, this lawyer’s competence and motivation might not be optimal. A complaint can also be filed before the Cour d’Assises. In such cases, both the plaintiff and defendant appear before a panel consisting of one judge and two assessors. A prosecutor then presents arguments on behalf of the state against the defendant, if deemed necessary.
These criminal trials are completely different. Both parties have the right to be represented by lawyers, who can speak on their behalf. Throughout the trial, both the plaintiff and defendant can speak at any time, provided they ask permission from the court. The presiding judge can allow them to speak for an unlimited period. The judge can also question both parties directly, without involving their lawyers. This means the parties lose the advantage of having skilled legal counsel and may make serious mistakes. Thus, people with enough money to hire top lawyers can end up in very bad situations if they speak too much in response to questions from the judge or opposing lawyers, who have the right to ask questions after obtaining permission from the court.
The duration of criminal trials depends solely on the discretion of the judiciary. A case involving bicycle theft or assault might be resolved in twenty minutes. Conversely, a defamation case could take many hours.
When ordinary people think of defamation, they immediately imagine extreme situations where gross insults are made. There’s also the issue of circumstances under which defamatory statements were made or could be made.
Someone might write in a newspaper, say on the radio, or post online: “Mr. So-and-so is a fraud” or “Mr. So-and-so accepted bribes in connection with some shady dealings.” In such cases, defamation seems obvious. But this trial could serve as an opportunity for the defendant to prove, via evidence, that the plaintiff is indeed a fraud.
Sometimes complaints arise simply because someone attributes defamatory statements to someone else who denies having said them. The courts decide whether to accept such complaints. But this article doesn’t aim to cover defamation comprehensively; we’ve merely given a few examples and insights. What we want to discuss here is more specific.
Statutes of limitations regarding defamation
There are many such statutes in law. Who hasn’t heard the phrase “the facts are time-barred”? The statute of limitations determines how long it takes before legal action can no longer be taken against someone for certain acts. This deadline can be exceeded for various reasons. The victim might not even know about this provision. Or they might be unaware of any wrongdoing directed toward them. But the law doesn’t care about that. “No one is presumed ignorant of the law.” We live as though the Civil Code is part of our DNA. Victims might also be psychologically unable to file complaints for years. This happens in cases of child abuse, where adults come forward to report sexual abuse they suffered as children. The lawyer representing the accused might argue, “In any case, these acts are time-barred.” We’ve heard this many times in the media.
In international law, certain acts are considered imprescriptible: those classified as “crimes against humanity.” Some Nazi torturers or organizers of Jewish deportations to concentration camps had to answer for their crimes decades later, despite being quite elderly.
Regarding defamation, victims might not even realize they’ve been targeted by the media. Nevertheless:
If defamatory statements are published in the press (newspapers, radio, television), the statute of limitations is three months.
Thus, the accused must file a lawsuit within 90 days of such statements being published. If they delay, their complaint will be dismissed outright. The court won’t even consider whether the statements were defamatory. There’s no judgment on the merits; only procedural issues matter. This doesn’t absolve the accused of all suspicion, but it does shield them from legal consequences. Let’s look at an example. Here’s the cover of Charlie Hebdo dated September 4, 2002:
It seems the individual involved is a well-known politician—though his name isn’t mentioned. A defamation lawsuit could theoretically be filed against the magazine. If filed, it must be done by December 4, otherwise it’d be time-barred.
Why a statute of limitations for the press? To ensure some level of independence and freedom. Note that information disseminated via the press is considered “fleeting.” Essentially, anything published in newspapers or magazines becomes irrelevant after three months—it ends up in trash cans or waiting rooms.
Previously, there was a legal vacuum concerning content posted online. Nowadays, anyone can create their own website and post whatever they want, including defamatory statements. Readers generally pay nothing to access such info. The creator, unless he solicits ads or uses cookies, won’t try to attract readers. Their numbers vary greatly. But that’s not the issue. Courts treat website creators as owners, publishers, and editors of a newspaper—albeit a very specialized one, appealing mainly to a limited audience. Online info can be accessed by virtually anyone, yet it carries no obligation to engage with it. Everyone has the freedom to read or ignore it. Internet is unique because it offers:
- The right to be informed (or misinformed)
- The right to remain uninformed (or unmisinformed)
Within a site, users can choose what info they wish to see. Since access is free, nothing is forced upon them.
The question arose: should there be a statute of limitations starting from the date the file was downloaded, rather than when the site went live? Were such allegations time-barred?
Recently, a French court ruled on a defamation case, establishing new precedent. It determined that alleged defamatory statements (downloaded files) were time-barred after three months. This ruling is crucial, influencing future judgments. It equates posting online content with fleeting information. Defamatory statements published in print are similarly regarded as “fleeting.” Same goes for radio and TV broadcasts. People can save newspaper copies or record broadcasts, but after three months, their impact diminishes, allowing statutes of limitations to apply. Courts view Internet similarly. Careful reading of this ruling clarifies its implications and conditions under which defendants benefit.
Why did courts impose statutes of limitations? Conversely, imagine no such limits existed. Defamatory statements could then lead to endless lawsuits, hanging over perpetrators like Damocles’ sword. Keep this in mind: imagine someone sues you for defamation, rightly or wrongly. To defend yourself, you’d need a good lawyer. Even in the best-case scenario, this would cost around 20,000 francs, or 3,000 euros. You might afford it easily, but it could also be a heavy burden. Imagine facing multiple lawsuits from individuals possibly backed by wealthy organizations. Even if acquitted, you’d still suffer financially. French judges likely felt that despite flaws, the Internet deserved similar protections as print media.
One final point worth noting
Anyone can download HTML pages, images, and documents online. They can store them on their hard drives, send them via email, or even add them to their own sites. This constitutes unauthorized dissemination. Suppose such content contains errors, falsehoods, or defamatory statements, and you’ve already removed it from your site. Who’s responsible: the original author or the person sharing it? Recently, site managers asked me for permission to copy content from my site. I refused. Imagine I discover some content on my site is defamatory or false. If I edit or delete it, older copies elsewhere remain untouched. If courts hold the site manager liable, he could argue, “I got permission to reproduce J.P.Petit’s content.” This is complicated; better not grant such permissions. Instead, suggest linking to your site. If you later change that content, the link points to the updated version. But if you deem it inappropriate, the link leads nowhere, displaying “page unavailable.” This wouldn’t happen if you allowed others to copy your content.
Analogously, this uncontrolled copying resembles adding content from other newspapers to one’s own paper.
We also know of lawsuits arising from emails, which are private correspondence. Malicious or careless individuals can replicate such emails, triggering defamation proceedings.
The Internet represents a revolution in information dissemination. Yet, those publishing online retain control over how their content spreads. If they’re authors, courts must clarify copyright rights. Generally, linking seems permissible; anyone can write, “Check out Mr. So-and-so’s article.”
A solution might be to include this disclaimer on your homepage (preferably in small print):
“The site owner permits others to link to their content but forbids copying or redistribution. Doing so would prevent him from accessing, modifying, or deleting it.” Should legal action arise due to unauthorized copies, the author bears no responsibility. Also, he denies anyone the right to turn private emails into public documents.
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