Is journalists’ freedom of expression a new justification under common law?

The ruling handed down by the Criminal Division of the French Supreme Court on October 26, 2016[1] begs the question, especially as it is not the first to enshrine the impunity of journalists prosecuted on the basis of their role in a democratic society.

1. The facts and procedure of the case

The facts – A journalist, Mrs. X…, had agreed with her publisher to join a political party, in this case the Front National, with the aim of carrying out an investigation to be published in the form of a newspaper[2] at the end of a period of “infiltration”. To this end, the journalist used her grandmother’s first and last names, as well as false professional and family credentials (in particular, a false Facebook profile and a false profile on Copains d’avant), in order to create a false identity.

After the book was published, the Front National decided to file a civil suit against Mrs. X…, which it considered guilty of fraud.

Dismissal – At the end of the judicial investigation, the examining magistrate dismissed the case on the grounds that certain elements of the offence of fraud had not been established. While the judge considered that the deception was characterized by the use of a false name and false qualities, he considered that the delivery of any goods was not effective.

The examining magistrate also considered that the intentional element and the prejudice did not appear to have been established.

Ruling confirming the dismissal – On appeal by the civil party, the Investigating Chamber of the Versailles Court of Appeal confirmed the dismissal by ruling on May 12, 2015, in terms of the following reasoning (in particular):

“that Mrs. X… acknowledges having acted unfairly by using a false name and false qualities, including by creating a false Facebook profile, and likewise a false profile on the “Copains d’avant” website;

that she confirmed to the examining magistrate that her objective, under cover of her militancy, was to obtain as much information as possible on the Front National by bypassing the party’s communications;

that she specified, a point not contested by the plaintiff, that however, in the book, in order not to harm the people concerned, certain information had not been revealed, nor certain internal documents used, such as the membership file and a guide to collecting the 500 signatures ;

that an open letter addressed to the people she had met during her immersion at the Front National was also removed from the manuscript at the publisher’s request;

that the result of the deception did not consist in the delivery of files or documents but, as stated in the initial complaint, in the delivery of “materials” in intellectual form, in particular words and confidences; that for a certain part of the doctrine, the delivery, provoked by the erroneous belief of the victim of a swindle, can relate not only to a material thing but also to a dematerialized good that can be commercially exploited; that as regards the delivery, the sufficiency of the charges thus results from the preceding elements;

as regards the damage resulting from the swindle for the Front National, the civil party, at the stage of assessing the charges, it appears that these are sufficient as regards the possibility of such damage, the verification of its nature and reality being the sole responsibility of the court that may be seized in the event of referral;

that the moral element of fraud is assessed not on the basis of motive, which is irrelevant, but on the basis of the fraudulent intent of the swindler through the aim pursued; that while bad faith may be inferred from an examination of the agent’s behaviour, good faith is assessed according to the circumstances of the case; that part of the doctrine referred to in the information file has, moreover, developed the notion of debate of general interest, to be distinguished, says the author, from the notion of legitimacy of the aim pursued, one of the conditions of the exception of good faith in defamation, from the civil notion of current event, as well as from that of justifying fact ;

in the present case, it cannot be seriously contested or even disputed that Mrs X… has written a “book of conviction”, going “to the heart of the party” to do so; that the fact that she pursued a financial objective has not been proven either, nor even that she sought to harm the Front National; that she invokes the code of ethics of the national journalists’ union (SNJ) to point out that journalists must not, in general, obtain information unfairly, unless their superiors are aware of this and the seriousness of the facts requires it;

that it thus appears that the journalist, through her freedom of opinion and expression, acted in accordance with her personal assessment of the seriousness of these facts, and of the resulting duty to inform; that these circumstances of the case are indicative of her good faith and lead to the conclusion that the charges relating to the moral element of fraud are not sufficient.

that in view of these elements, which supplement those set out by the examining magistrate, it is appropriate to confirm the order declaring that there are no grounds against Mrs. X… on the charge of fraud against the Front National;”.

2. The ruling of the Criminal Division: a presumption of criminal irresponsibility?

In response to the appeal lodged by the plaintiff, the Cour de cassation rejected the appeal on the grounds of freedom of expression as enshrined in article 10 § 1 of the European Convention on Human Rights[3], without citing it[4].

The Criminal Division first ruled that the Versailles Court of Appeal had confused the intentional element of the offence with motive:

“If it is wrong for the investigating chamber to hold that the moral element of fraud is assessed with regard to the aim pursued by the presumed perpetrator, (…) “.

Nevertheless, the Court of Cassation decided not to censure the Court of Appeal, considering ” that it can be deduced from its statements that the acts denounced were part of a serious investigation, intended to fuel a debate of general interest on the functioning of a political movement, so that, having regard to the role of journalists in a democratic society and taking into account the nature of the acts in question, their criminalization would constitute, in this case, a disproportionate interference in the exercise of freedom of expression “.

In other words, four cumulative criteria are laid down by the Cour de cassation to rule out the criminal liability of Mrs X… :

1. a serious investigation ;
2. the aim of fuelling a debate of general interest, in this case on the workings of a political movement;
3. the defendant’s status as a journalist;
4. and the nature of the conduct in question[5].

What’s more, the last part of the opinion raises the question of a possible presumption of criminal irresponsibility for journalists, as the Court establishes the principle of the exercise of freedom of expression, taking up the concept of disproportionate interference.

Indeed, Article 10(1) prohibits ” interference by public authorities ” in the exercise of this right.

However, § 2 of the same article sets strict limits on the exercise of freedom of expression:

• these limits may take various forms: formalities, conditions, restrictions or sanctions ;

• these measures must be provided for by law;

• these limits must be necessary :

– national security,

– territorial integrity

– public safety,

– the defence of public order and the prevention of crime,

– the protection of health or morals,

– to protect the reputation or rights of others,

– to prevent the disclosure of confidential information,

– to guarantee the authority and impartiality of the judiciary.

The presumption of irresponsibility would lie in the application of article 10 each time a journalist is accused of an offence, with the criminal judge having to apply the principle of freedom of expression a priori.

It would then be up to the prosecution to demonstrate that one (or more) of the exceptions provided for in § 2 had been met, so that the judge could consider, once the presumption had been rebutted, the possibility of an offence.

3. Two precedents: the Clearstream and Bettencourt cases

The two recent decisions handed down by the criminal courts in these media cases follow the same logic, namely to establish the principle of freedom of expression as a bulwark against any criminal conviction of a journalist for ordinary offences[6].

Clearstream – On January 28, 2010, the ^11th chamber of the Paris Criminal Court handed down a judgment in the Clearstream case. As a reminder, in this case of slanderous denunciation, a journalist was prosecuted for receiving stolen goods and breach of trust, in particular listings of accounts and transactions[7] initially originating from the Clearstream company.

The criminal court acquitted the journalist on the basis of article 10 of the ECHR[8] (without the public prosecutor’s office appealing), ruling that the charges could not give rise to a conviction as they were part of an investigative journalistic activity which ” had provoked and fuelled a public debate on the fight against international corruption and money-laundering networks “.

Bettencourt – The second judgment was handed down on January 12, 2016 by the Bordeaux Criminal Court in the “invasion of privacy” section of the Bettencourt affair. Five journalists were prosecuted for using a recording or document obtained through an invasion of Mrs. Liliane Bettencourt’s privacy.

After recalling the text of article 10 of the European Convention on Human Rights, the court stated:

” the right to public information, a corollary of freedom of expression as envisaged in particular by article 10 of the Convention, requires the publication of information on matters of general interest.

This is an essential freedom on which the foundations of any democratic society rest. It cannot be infringed without exceptionally serious grounds. […] “[9].

Recalling the seriousness of the investigations published by the journalists in question, the court decided to acquit them, considering that ” in view of the assessment [of] all these elements, within the framework of the balance sought between the right to respect for private life and freedom of information, the alleged offence cannot be upheld”[10].

4. The Criminal Division ruling of June 9, 2015

We commented on this ruling on this blog[11]. At the time, the Cour de Cassation had upheld the conviction of a journalist for concealment of a violation of investigative secrecy, having published the sketch of a suspect during the course of an investigation into a series of rapes.

The journalist had invoked the provisions of article 10 of the ECHR to request the cassation of the judgment that had convicted him.

While recognizing the primacy of Article 10, the Court of Cassation rejected his appeal, ruling that the Court of Appeal had ” justified its decision, without disregarding the provisions of Article 10 § 2 of the European Convention on Human Rights, since freedom of expression may be subject to restrictions necessary for the protection of public safety and the prevention of crime, which include the investigations carried out to apprehend a dangerous person; “.

Although denying the journalist the benefit of freedom of expression, this judgment seems to follow the same logic as that of October 26, 2016 in that it relies on the provisions of article 10 § 2 of the ECHR to consider that freedom of expression must, in this case, suffer a restriction necessary for the protection of public safety and the prevention of crime.

5. Conclusion

In recent years, the French criminal courts seem to have created a new justification for criminal irresponsibility, prohibiting any criminal conviction of a journalist if his or her work falls within the scope of Article 10 § 1 of the European Convention on Human Rights.

The ruling of October 26, 2016 confirms this trend in that it applies this ” end of non-condemnation ” in matters of swindling: unless justified under § 2, criminal public policy must take a back seat to freedom of expression, whether the acts prosecuted fall within the scope of defamation, the use of recordings infringing privacy, concealment of breach of trust or theft or, as in this case, swindling.

On the merits, the position of principle that seems to be emerging must be approved, in that it allows the ” watchdogs of democracy ” to inform citizens without fear of criminal sanction.

[1] Cass. Crim. 26 October 2016, n° 15-83.774.

[2] The book will be entitled ” Bienvenue au Front, journal d’une infiltrée “.

[3] Article 10: freedom of expression

” 1 Everyone has the right to freedom of expression. This right includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, motion picture or television enterprises.

2. The exercise of these freedoms, which carries with it duties and responsibilities, may be subject to certain formalities, conditions, restrictions or penalties prescribed by law, which constitute measures necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary. “

[4] ” Whereas it is clear from the judgment under appeal and from the documents in the proceedings that Mrs X…a freelance journalist, used a false name and false capacity, supported by the creation of false profiles on Facebook and on the “Copains d’avant” website, before joining the Hauts-de-Seine federation of the “Front National” political movement, which enabled her to obtain internal documents and information that she used to write a book entitled “Bienvenue au Front, journal d’une infiltrée” (“Welcome to the Front, diary of an infiltrator”); The Front National association lodged a civil party complaint against her for fraud; the examining magistrate dismissed the case and the association appealed;

Whereas, in order to confirm the order, the judgment notes, on its own and adopted grounds, that Mrs. X…, who does not appear to have sought to harm the Front National, had the sole aim of informing and warning her future readers by reporting remarks made during debates or informal exchanges, with the aim of making the ideology of this party better known;

Whereas the investigating chamber wrongly held that the moral element of fraud should be assessed in the light of the aim pursued by the presumed perpetrator, the judgment did not incur censure, since it could be deduced from its statements that the acts denounced were part of a serious investigation, intended to fuel a debate of general interest on the functioning of a political movement, so that, having regard to the role of journalists in a democratic society and taking into account the nature of the acts in question, their criminalization would constitute, in this case, a disproportionate interference in the exercise of freedom of expression;

It follows that the plea must be rejected;

And whereas the judgment is regular in form;

Dismisses the appeal; “

[5] These criteria are similar to those for the excuse of good faith in defamation cases. To prove good faith, the journalist must demonstrate :

• the legitimate aim of his action ;
• the absence of personal animosity towards the person in question;
• the seriousness of the investigation;
• the prudence of his expression.

[6] In other words, beyond the scope of the French press law of July 29 1881.

[7] He was specifically accused of ” having in Châtel Saint Germain and Metz (57), in any case on national territory, between 2001 and 2006, in any case for a period not covered by the statute of limitations, knowingly concealed listings of accounts and transactions and all other documents or data which he knew to have originated from an offence, in this case a breach of trust committed to the detriment of the companies Clearstream Banking and Clearstream International based in Luxembourg, and a theft committed to the detriment of the company Barbier Frinault et Associés “.

[8] ” Whereas it is clear from the foregoing that, from the outset, the acts being prosecuted were part of X.’s journalistic investigative work, which he had been engaged in for several years and which had provoked and fuelled public debate on the fight against international corruption and money-laundering networks ;

that, consequently, the proceedings initiated against X…based on his possession, from December 2001 onwards, of computer documents containing information whose fraudulent origin he did not know until the following April, and on the use he subsequently made of them by disclosing them to a third party and in his legal defence, appear to be incompatible with respect for the principle established by the aforementioned article 10 of the ECHR, which guarantees journalists not only the freedom to inform the public on a subject of general interest, butalso the possibility of demonstrating, in court if necessary, the accuracy of the information they have disseminated; that such facts cannot be qualified as concealment of breach of trust or theft, an offence which does not appear to have been established against the accused;

Whereas X… must therefore be acquitted; “.

[9] Page 26 of the judgment.

[10] Page 33 of the judgment.

[11] Cass. Crim. June 9, 2015, no. 14-80.713 – http://contentieux-et-resolution-des-litiges.uggc.com/2015/06/26/de-la-limite-a-la-liberte-dexpression-des-journalistes-dans-le-cadre-des-enquetes-penales-en-cours/