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ECtHR: Eon v France

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ARTICLE 19

01 Aug 2013

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14 March 2013, European Court of Human Rights, Application no. 26118/10

 

Theme: Defamation

Sub-issues: Public figures and bodies

Test: Necessity in a democratic society

Penalty: criminal conviction and a suspended fine of 30 EURO

Decision: Violation of the right to freedom of expression, six to one

Jurisdiction: European Court of Human Rights

 

Facts:

In August 2008 during the visit of the French president in the city of Laval, the applicant waved a small banner reading “Get lost you prat” (Casse toi pov’con). The applicant was referring to a phrase pronounced by the President himself earlier in 2008 at an agricultural fair which had been given a lot of media coverage. The phrase was later reused on Internet and in different demonstrations.

The applicant was immediately arrested and prosecuted for offending the President, an offense under the 1881 Freedom of the Press Act.

In November 2008 the Tribunal de Grande Instance found the applicant guilty of offending the President and issued a suspended sentence of a 30 EURO fine. The Court of Appeal confirmed the first instance judgment stating that even if the phrase had become famous it did not mean it was not offensive.

The applicant went before the highest court of the French judiciary, the Cour de Cassation, but his petition was rejected. Consequently, he asked the European Court of Human rights to recognise that his sentence infringed his right to freedom of expression guaranteed by article 10 of the European Convention of Human Rights.

The applicant argued that he did not challenge the quantum of the sanction but rather the principle of it. He asked the Court to declare that the offense to the President was in violation of the European Convention of Human Rights as its procedure was identical to the offense against foreign presidents abrogated in 2002 following the ECtHR decision in Colombani et autres c. v France.

The French Government argued that the sentence was provided by law and was necessary in a democratic society in order to protect the highest representative of the State of verbal and physical attacks that would subsequently harm the institutions of the State. The Government presented the protection offered to the President as a social imperious need, and contended that the sentenced was proportionate to the offense.

 

Held:

The Court held that there had been a violation of Mr Eon’s right to freedom of expression.

The Court first considered that the applicant’s sentence constituted an interference of the French public authorities in his freedom of expression, and thus had to determine if it fit within the allowed restrictions of Article 10. The ECtHR noted that allowed interferences must be “provided by the law”, derived from “legitimate interests” and “necessary in a democratic society”. The Court found that the first and second criteria were present in the case. Therefore it focused on the assessment whether the interference was “necessary in a democratic society”.

First the Court looked at the context of the statement. Taking note of the applicant’s political activities in the past it recognised that his action had a political nature. The phrase, although insulting, addressed a political criticism to the Head of State. However, the Court found that it was not an attack to the President’s personal life or honour. The Court recalled that the European Convention on Human Rights leaves little opportunity to restrict freedom of expression in the area of political speech and political debate. The Court further emphasised the fact that the limits of criticism are broader for a politician than for a private individual maintaining that the first in fact willingly subjects himself to public and media scrutiny, contrary to the latter.

Next the Court looked specifically at the allegedly insulting words. It noted that the President’s words had attracted significant media coverage and public outcry. The Court concluded that by echoing the phrase used by the President, the Applicant chose a satirical approach to express his criticism and considered that he had used “satirical impertinence” to express his criticism. The ECtHR referred to its case-law in which it had found that satire is a form of artistic expression and social comment which “by deforming and exaggerating reality (…) aims at provoking and agitating”.

Finally, the Court examined the impact of the sentencing on satirical interventions. It found that the impact would be dissuasive on satirical contributions to discussions of matters of public interest, noting that the latter were fundamental to a democratic society.

Hence the Court decided that the applicant’s sentence was disproportionate and thus not necessary in a democratic society.

The Court did not agree to look into the law itself despite the fact that it did so in the case of Colombani v France, which concerned the different offence of insulting a foreign head of state and focused specifically at a violation of the press’ right to freedom of expression. The ECtHR held in Colombani that the offense against a foreign head of state was contrary to the convention, as it did not allow defendants to present a defence based on the truth of their allegations. In Eon case, the applicant asked the Court to adopt the same decision and declare that because no truth defence was available to the applicant, the offense against the president of the republic was incompatible with the Convention. The ECtHR however held that the fact that the truth defence was not available to the applicant did not matter as the applicant’s intention was to insult the president. The Court also added that the domestic courts had anyway looked at his good faith to determine if his action was justified, and found that it was not because of his political engagement. The Court thus concluded that the present case “did not produce any specific effect nor given any privilege to the head of state vis-à-vis the right to freedom of information and freedom of expression when concerned with the president”.

Read full the judgement here [French]