Insults, defamations, insults, what are the rules to know? Olivier Maudret is a criminal lawyer at the Paris bar.
franceinfo: What is the public insult for which the Grenoble prosecutor has opened an investigation?
Olivier Maudret: It is the press offense of the insult which appears in the law of July 29, 1881, which is the fundamental law which governs the freedom of the press and the freedom of expression in France, since the beginnings of the Third Republic.
Is calling someone a fascist or an Islamophobe prohibited by law, is it particularly serious?
Yes, it is criminally qualifying from the point of view of public insult or defamation. The two incriminations are different. Defamation is the imputation of a specific fact which harms the honor or the consideration of a person or a body. Insult is any outrageous expression. Here it would not be a “fascist” example, attached to the names of the two professors. Invective, a term of contempt which does not include the imputation of any specific fact.
Here the body of the offense is a sign posted at the entrance to Sciences Po Grenoble with the names of the two professors attached to the fascist expression. We are therefore in the presence of an insult, much more than a defamation, because no specific fact susceptible to an adversarial debate is reported here. It is the insult: fascist as one could have said “bastard”.
An example of this difference?
Everything really depends on the precision of the fact imputed. If I write or say that you are a bastard because you participated in a rally of neo-Nazis last Saturday at Le Bourget, you can sue me for defamation. If I just call you a bastard, and I stick to it, you can sue me for insulting me.
Does the fact that it is public, for all to see, matter?
Its very important. This shifts the insult from the area of offense to the area of tort and therefore to the jurisdiction of the criminal court.
Why is it the prosecutor who initiates the prosecution?
He is there for that. It is the public prosecutor, it is the representative of the interests of the company, so in the presence of an offense of press, it has the natural competences to start the prosecutions “proprio motu”, of itself.
If it had happened on the internet, would it have been the same?
Yes, it would have been the same, we would have had a public broadcast of an insult.
How is the insult characterized?
It is any term, any pejorative invective. We would have a problem here, if we played the devil’s advocate, we would have a defense that would consist in saying that we are not in the presence of an insult: fascist, that refers to a period of the twentieth century, that refers to a political movement, and it was ruled by the criminal chamber that the epithet of communist was not offensive. So the lawyers of the parties being sued could defend themselves on this ground, objecting that the term fascist is not inherently offensive.
It does not happen in the same way in other countries …
In the countries of Anglo-Saxon tradition, it is somewhat the opposite principle to that which prevails in France. There is no law, there is no enumeration of what is permitted and what is prohibited. When there is a problem with an insulting or defamatory statement, we refer the matter to the judge, who assesses on a case-by-case basis. But it is true that the First Amendment of the Constitution of the United States poses as a sacred principle, the principle of freedom of expression.