Defamation Law: Legal Proceedings

Internet and Defamation

The Problem of Prescription

September 11, 2002

What is defamation? Someone has made statements about another person that the latter considers, rightly or wrongly, defamatory. The injured party files a complaint, a step that can be taken before various judicial bodies. This may be done before the Tribunal de Grande Instance (TGI). It should be noted—this detail deserves emphasis—that in such cases, both parties will not be allowed to speak directly during the trial but must necessarily be represented by a lawyer. This is the law. Parties are prohibited from speaking in person within the TGI, even if they request to do so. Worse still: the person who has not formally "constituted" themselves by hiring a lawyer will not even be informed of the date of their own trial, which can only be set by a lawyer acting on their behalf. For those who can afford it, no problem arises. For those who cannot, if they can prove insufficient or nonexistent resources, they may benefit from aide juridictionnelle and, after applying, be assured of the assistance of a juge commis d'office, who will be paid by the public prosecutor—but whose competence and motivations may not be optimal.

The complaint may also be filed before the Tribunal Correctionnel. In this case, the plaintiff and defendant will be called to testify before a court composed of a judge and two lay assessors, with a public prosecutor present to deliver a final argument against the defendant, on behalf of the public interest, if he deems it appropriate, and also attending the hearing.

These correctional proceedings are entirely different. Both parties have the right to be assisted by a lawyer, who may speak during the trial. However, throughout the trial, the plaintiff and defendant may speak at any time simply by requesting permission from the court. The presiding judge may then grant them the floor for an unlimited duration. The judge may question both the plaintiff and the defendant directly, without going through their lawyers. In doing so, the parties lose the advantage of their legal counsel’s skill and may end up making serious mistakes. It is not uncommon for individuals involved in correctional proceedings—those with sufficient financial means to hire prominent lawyers—nevertheless to place themselves in very poor positions by speaking too freely in response to questions posed either by the judge or by the opposing counsel, who is entitled to ask questions after obtaining permission from the court.

Correctional trials vary greatly in length, depending entirely on the goodwill of the justice system. A case involving bicycle theft or minor assault may be resolved in twenty minutes. Conversely, a defamation case may extend over many hours.

When the average person thinks of the term "defamation," they immediately envision extreme cases where serious and obvious insults were uttered. This raises the question of the circumstances under which allegedly defamatory statements were made.

Someone wrote in a newspaper, or declared on the radio, or posted on an internet site: "Mr. So-and-so is a fraud" or "Mr. So-and-so accepted a bribe in a confirmed scandal." The presumption of defamation is then clear. Yet this trial may become an opportunity for the defendant to prove, through evidence, that the plaintiff is indeed a genuine fraud.

Sometimes, the complaint is based on a single word, leaving it to the court to decide whether the complaint is admissible. For example, if a person, speaking through a newspaper, writes, "Mr. Such-and-such is a fumister," is this term offensive? What harm can the victim claim in this case? If the alleged damage relates to their professional activity, they might argue a loss of credibility with their superiors—an accusation all the more serious if the victim is still active and risks suffering professional consequences. The accused may attempt to defend themselves by proving that this label is justified. This may prove very difficult for two reasons. First, if the complaint is filed at the TGI, only lawyers may speak. The accuser and the accused are required to remain silent. If the term "fumister" refers to work performed by the accused in a professional context and the defense aims to demonstrate that this work was not conducted seriously—e.g., that erroneous conclusions were drawn from a technically unsound study, leading the plaintiff to misinform the public—the accused will have to present a complex technical argument before a court that may not understand it, let alone validate it, since judges are not experts in such specialized fields. Thus, it may happen that a person who performed work in a careless manner—deserving the label used—ends up being heavily punished, while someone who, through the press, exposed a well-founded incompetence is condemned, simply because the accused, through their lawyer (possibly a court-appointed one), failed to prove their innocence by producing credible expert reports.

This brief discussion illustrates the need for caution when choosing words in statements made through the press, in newspaper articles, or on websites one manages oneself. For example, if someone had written, "The work carried out by Mr. Such-and-such in such a context is a complete fumisterie," the effect would have been identical, but there would have been no defamation, and no complaint could have been filed—because what was criticized was the work, not the person who performed it. Those who wish to denounce situations where public funds are openly squandered by individuals lacking the necessary qualifications to carry out assigned tasks and studies must keep this distinction clearly in mind.

That the legal process is a jungle comes as no surprise. When law students begin their studies, one of the first things they hear from their professors is the well-known phrase:

Law is not justice.

Justice operates within a framework of texts known as the law. It is up to both parties, with the help of their lawyers, to exploit every legal technicality in an effort to improve their position, strengthen their arguments, and reinforce their defense or attack. A complementary element is jurisprudence. Not every possible legal situation can be foreseen. The legal system is therefore constantly evolving. A legal vacuum may exist in certain circumstances. This vacuum may be total, meaning the situation in question is unprecedented. The judgment will then rely on...