Case:
Bull. Civ., 2000 Ass.Plén Case Consorts X v. Société Y Case Epoux X. v. M. Y. Subsequent Developments
Date:
12 July 2000
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Bull. Civ., 2000 Ass.Plén

Case Consorts X v. Société Y
Case Epoux X. v. M. Y.

On the sole ground of application for review:

Given that according to the decision under attack (Paris, 17 September 1997), rendered on remand after the previous decision had been quashed (Civ. 2, 22 June 1994, Bull.Civ. 1994 II no. 165), the weekly magazine Y. published an article on the war in Algeria entitled “Algeria: Were the French Guilty of War Crimes?” in which it was alleged that lieutenant X. had resorted to torture, whereupon his widow and children sued M. Z, the author of the article and the company which published it for reparation of the harm they alleged it to have caused them;

Given that the claimants criticise the judgment for dismissing their claims when, as they maintain, they were entitled to sue for their harm under article 1382 and the Court of Appeal violated that article by refusing to apply it simply because the publication, which was admittedly defamatory of the memory of X. disclosed no intention on the part of the author to compromise the claimants’ honour or standing;

But given that article 1382 Code civil cannot be used to grant reparation for abuses of the freedom of expression which are covered by and sanctioned by the Law of 29 July 1881, and that having found that the publication of the statements complained of were indeed covered by article 34(1) of that Law, the Court of Appeal was right to conclude that the claimants could not be allowed to resort to article 1382 Code civil; that the ground put forward is unfounded;

For these reasons DISMISSES the application for review.

Additional ground of application for review, put forward by Me Choucroy, advocate at the Court, on behalf of the claimants;
“The sole ground:

The judgment is criticised for dismissing in its entirety the claim of the widow and heirs of Colonel X. for the following

REASONS:

that the exercise of the right of free expression, laid down by article 10(1) of the European Convention for the Protection of Human Rights and Fundamental Liberties can, according to article 14(2), be subjected to formalities, conditions, restrictions or sanctions only if these are laid down by law; that in France it is the Law of 29 July 1881 on the Liberty of the Press which defines the formalities, conditions, restrictions and sanctions to which this liberty is subject and thereby lays down its limits; that according to article 34(1) of this Law statements which libel or insult the dead cannot be sanctioned unless their author intended to compromise the honour or standing of his heirs, spouse or universal legatees; that the statements complained of allege that X. was guilty of acts of torture of human beings; that as such statements constitute in themselves a libel to the memory of X. their publication is clearly covered by article 34(1) of the Law of 29 July 1881; and that these provisions being mandatory , the claimants cannot be allowed to invoke article 1382 Code civil or claim that the publication be sanctioned in any way other than provided by that Law;
WHEREAS in holding that the claimants had no right to claim reparation under article 1382 Code civil for the harm they suffered from the publication in issue simply because it constitutes a libel on the memory of X. and there is no evidence of any intention on the part of its author to compromise the honour or standing of the claimants as required by article 34(1) of the Law of 29 July 1881, the Court of Appeal violated article 1382 Code civil by refusing to apply it.”

-x-x-x-x-

[Second Decision]
Epoux X v. M. Y

Given that according to the judgment under attack (Versailles, 16 October 1997) an article headed “The Case of X… Dicing with Death”, written by M. Y., appeared in the Z. magazine, and that M. and Mme X. sued M. Y. and the publisher of the magazine for the moral harm they suffered from some improper passages in the article which would suggest to the reader that their son, now deceased, was devoid of all moral sense and was responsible for fatally infecting many people with the HIV virus;

Given that M. and Mme X. now criticise the judgment for dismissing their claim whereas, according to the application for review, the immunity granted by article 34 of the Law of 29 July 1881 to the author of a libel on the memory of a deceased person unless he intended to compromise the honour or standing of the heirs, spouse or universal legatees applies only to criminal liability and does not affect civil liability, which can always be asserted if the conditions for the application of article 1382 Code civil are satisfied, so that in basing their decision solely on article 34 of the Law of 1881 notwithstanding their finding that M. Y. had failed to comply with his journalist’s obligation to verify his facts, the Court of Appeal violated the said article 34 by misapplying it and article 1382 Code civil by failing to apply it;

But given that abuses of the freedom of expression which are covered and sanctioned by the Law of 29 July 1881 cannot be the subject of reparation under article 1382 Code civil, and that having found that the publication of the matters complained of fell within article 34(1) of that Law, the Court of Appeal was quite right to decide that M. and Mme X. could not avail themselves of article 1382 Code civil; that the ground of application is unfounded;

For these reasons DISMISSES it.

Additional Ground of Application for review, put forward by SCP Ly on-Caen, Fabien and Thiriez, advocate to the Court, on behalf of M. and Mme X.:

“The decision below, reversing the decision at first instance, is criticised for holding that M and Mme X. could not rely on article 1382 Code civil to sue M. Y. for what he wrote since he did not intend to compromise their honour or standing, the REASONS given being as follows:

The freedom of expression laid down by the Declaration of the Rights of Man and the Citizen and by article 10 of the European Convention for the Protection of Human Rights and Fundamental Liberties cannot be restricted or sanctioned except by precise legal provisions, those provisions being those of the Law of 29 July 1881 on the Liberty of the Press; that article 34(1) of that Law provides that the author of statements libelling or insulting the dead is not subject to the penalties laid down in articles 31, 32, and 33 except in the case where he intended to compromise the honour or standing of the surviving heirs, spouse or universal legatees; that in the absence of any such intention, such libels or insults are not punishable, but at most give the heirs, spouse and universal legatees the right of reply provided for in article 13 of that Law; that one can infer from this that the surviving heirs, spouse and universal legatees cannot use article 1382 Code civil in order to claim reparation for the harm caused to them, since such an action would amount to sanctioning conduct which article 34 states not to be subject to punishment, and thus not faulty conduct at all; that the statements in issue, including one which M. Y. cannot prove to be true, as the court of first instance correctly found to be the case, contain an imputation of a particular fact which impugns the honour and standing of the deceased and thus amounts to a libel on the dead, falling under article 34(1) of the Law of 29 July 1881; that in making these allegations M. Y. had no intention of compromising the honour or standing of X’s parents; that it follows that they cannot form the basis for a claim under article 1382 Code civil; that the failure of M. Y. to respect the journalist’s obligation to verify his facts does not in truth constitute a fault distinct from that of publishing the defamatory matter in issue; that furthermore M. and Mme X. have never claimed on the basis that there was an invasion of the private life of their deceased son so as to take advantage of decisions which have allowed the primary victim’s heirs to bring a claim based on article 9 Code civil; that finally as no civil fault apart from the defamation can be found against M. Y., the claim for compensation was rejected;

WHEREAS it is only from criminal liability that article 34 of the Law of 1881 immunises the author of negative reflections on the dead unless he intended to compromise the honour or standing of the spouse, heirs or universal legatees, an immunity which cannot possibly be extended to the civil liability of the author of the statements in issue, for civil liability can always be asserted if the conditions of application of article 1382 Code civil are satisfied; and in deciding on the sole basis of article 34 of the Law of 29 July 1881 when the claimant spouses had sought reparation of their own harm on the basis of article 1382 Code civil, the Court of Appeal of Versailles, notwithstanding that it had found that the journalist was in breach of his obligation to verify the facts, violated not only article 34 of the Law of 1881 by misapplying it but also article 1382 Code civil by failing to apply it.”

This note on subsequent developments reflects the legal situation as of November 2003.

Assemblée plénière 12 July 2000 (two judgments): Cf Jurisclasseur numérique, responsibilité civile et assurances, instalment 133-30 (December 2002), Hélène Pélissier-Gateau and Caroline Guillemain, nos 187 to 226: the rules provided for by the Law of the 29 July 1881 being more restrictive for claimants than the rules of the droit commun for liability, to admit these latter would amount to limiting the liberty of the press. Such is the position of the case law today, after numerous reversals and hesitations, but clearly corroborated by these two judgments which confirm, according to the authors mentioned above, "that the action for reparation based on article 1382 of the Code civil is only admissible on condition that the actual facts relied on in support of this action are distinct from those which constitute an offence prescribed and proscribed by the Law of the 29 July 1881". This case law has been confirmed in particular by two judgments of the second civil chamber of the Cour de cassation of the 8 March 2001 (Bull nos 46 and 47) and then the 14 March 2002 (Bull nos 45 and 46): the authors observe in relation to this subject that the second chamber has even reinforced the principle by deciding that the abuses of liberty of expression prescribed and proscribed by the Law of 29 July 1881 were not only not capable of being compensated on the basis of article 1382 (as expressed in the judgments of the 12 July 2000), but equally that they could not be pursued on this basis, making any claim to this effect conclusively inadmissible. Although article 1382 can always be invoked as far as the press is concerned, it is on condition that the claim is directed at facts which are outside the domain of the Law of the 29 July 1881.

Translation by Raymond Youngs

 

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