Full case report
Brasilier v France
Reference Application No. 71343/01
Court European Court of Human Rights
Judge Cabral Barreto (President), Costa, Jungwiert, Butkevych, Mularoni, Jociene (Judges) Popovic (Section Registrar)
Date of Judgment 11 Apr 2006
Human rights – Freedom of expression – Article 10 ECHR – Defamation – Election candidates in dispute – Allegations of ballot rigging, fraud and theft – One French franc in damages awarded – Importance of open political debate – Basis in truth – Sanction disproportionate
B was a parliamentary candidate, opposed by T. B accused T of rigging the ballot and organised a public demonstration to protest at the alleged conduct. Accusations of various kinds, including fraud and theft appeared on banners and a leaflet accusing T of a “hold up” of 60,000 ballot papers for B. T complained. B was acquitted by the criminal court but the appeal court found B civilly liable and awarded T one franc in damages.
Was the finding of civil liability and the one franc award of damages an unnecessary and disproportionate interference with B’s freedom of expression under Article 10?
The finding and award were in breach of Article 10. They were in accordance with the law and for a legitimate aim but not necessary in a democratic society. French domestic law had required B to prove the truth of his accusations but these concerned matters of public interest and were, in context, more in the nature of value judgments than statements of fact; they were made in the course of heated debate which had been extensively covered in the media; and there was some factual foundation, to the extent that T had been placed under examination for electoral fraud (albeit not found guilty). Despite their hostility and gravity, B’s accusations were made in the context of electoral scrutiny. Free political debate is essential to the working of democratic society. Even such a small award, when coupled with a finding of liability, was disproportionate and unnecessary.
The case is a vivid illustration of the well-established principle that there is little room for restrictions on free expression when it comes to speech on political issues or questions of general interest. The ‘political debate’ in question was, to English eyes, not comment but a direct accusation of guilt of a criminal offence. In the light of this decision it seems clear that if Culnane v Morris had followed the pre-Human Rights Act law on qualified privilege for electoral candidates, UK law would have been in breach of the Convention.
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