Reference: (2005) 41 EHRR 29
Court: European Court of Human Rights
Judge: Baka, (President), Costa, Loucaides, Jungwiert, Butkevych, Thomassen, Ugrekhelidze (Judges), Early (Deputy Section Registrar)
Date of judgment: 29 Jun 2004
Summary: Human rights - Freedom of Expression - Defamation - Libel - French criminal and civil law - 'good faith' defence - Articles 8, 10 ECHR
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The applicants were sued by the Aubracs, figures from the French Resistance movement, over various extracts from a book written and published by them. The book, which relied on the testimony of Klaus Barbie (the infamous Gestapo regional head), sought to challenge the official version of events surrounding the arrest of Resistance leaders in 1943. The Tribunal de Grande Instance rejected the applicants’ defence of historical criticism in good faith and found the applicants civilly and criminally liable for public defamation, holding that the book accused the Aubracs of collaboration and treachery by both reproducing and lending credence to Barbie’s accusations. The Court found that the book had given excessive importance to Barbie’s submissions and was inadequately researched, with insufficient critical analysis of sources. The Court of Appeal and the Court of Cassation upheld the convictions including the fines and awards of damages. The applicants appealed to the European Court.
Whether the penalties were ‘prescribed by law’ and disproportionate.
Dismissing the appeal,
(i) The French statutory provisions were accessible, the case law that interpreted them well known and the legal risks associated with the historical publication in question, reasonably foreseeable. The interference with freedom of expression was ‘prescribed by law’ within the meaning of Art 10(2).
(ii) The interference complained of pursued at least one of the ‘legitimate aims’ set out in paragraph 2 of Article 10.
(ii) The convictions of the domestic courts were based on relevant and sufficient reasons. The author had failed to respect the fundamental rules of historical method in the book and had made particularly grave insinuations.
(iii) The fines and awards of damages imposed were relatively modest and were justified in the circumstances of the case.
Following Radio France & Ors v France (Application No 53984/00), Chauvy is the second assertion (in almost as many months) by the ECtHR that the right of individuals to protect their reputation is a right that is protected by Article 8 of the Convention as part of the right to respect for private life. Chauvy also involved a Reynolds-style defence in the context of historical writing, although the defamatory statements were deemed by French law to have been made in bad faith so that the burden of proof was on the accused to show good faith.