Decision no. 2011-131 QPC of 20 May 2011

On 21 March 2011 the Constitutional Council, pursuant to Article 61-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, decree no. 1707 of 15 March 2011) raised by Ms Térésa C. and Mr Maurice D., regarding the compatibility of Article 35(5) of the Law on the Freedom of the Press with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the basic law on the Constitutional Council;

Having regard to the Law of 29 July 1881 on the Freedom of the Press, amended in particular by the Ordinance of 6 May 1944 to combat publishing offences;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations on behalf of the applicants by SCP Normand and Partners, Attorneys at the Paris Bar, registered on 15 April 2011;

Having regard to the observations of the Prime Minister, registered on 15.04.11;

Having regard to the documents produced and appended to the case files;

Having heard Christophe Bigot Esq., Attorney at the Paris bar, for Ms C., Renaud Le Gunehec Esq., for Mr D. and Mr Xavier Pottier, appointed by the Prime Minister, at the public hearing of 10 May 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article 35(5) of the aforementioned Law of 29 July 1881, the fact that a defamatory statement is true may be established at any time unless "the charge relates to statements that were made more than ten years previously";

2. Considering that, according to the applicant, the fact that it is impossible for a person charged with defamation to provide evidence that defamatory statements made more than ten years previously are true violates freedom of expression and the right to a defence;

3. Considering that Article 11 of the Declaration of Man and the Citizen of 1789 provides: "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law"; that the freedom of expression and communication is all the more precious since its exercise is a prerequisite for democracy and one of the guarantees that other rights and freedoms will be respected; that any restrictions on the exercise of this freedom must be necessary, appropriate and proportionate with the objective pursued;

4. Considering that Article 35 of the aforementioned Law of 29 July 1881 specifies the cases in which a person charged with defamation may release himself from any liability by providing evidence that the defamatory statement is true; that paragraphs 3 to 6 of this Article provide in particular that the truth of a defamatory statement may be proven at any time, unless the charge concerns the private life of the individual and refers to facts that occurred more than ten years before or to conduct covered by an amnesty or that is time barred, or which has resulted in a conviction reversed by discharge or on appeal;

5. Considering that in preventing evidence that a defamatory statement is true from being brought where the charge relates to events that occurred more than ten years previously, Article 35(5) has the objective of preventing freedom of expression from re-evoking allegations made in a distant past that harmed the honour and standing of the people affected by them; that the resulting limitation on freedom of expression pursues a goal in the general interest in the quest for social peace;

6. Considering nonetheless that, where they refer to events that occurred more than ten years previously, this prohibition covers without distinction all statements or publications resulting from historical or scientific studies, including where the charges refer to events which were referred to or commented upon within a public discussion of general interest; that, due to its general and absolute nature, this prohibition violates freedom of expression in a manner that is not proportionate with the goal pursued; that, accordingly, it violates Article 11 of the 1789 Declaration;

7. Considering that, accordingly, there is no need to consider any other objection and Article 35(5) of the aforementioned Law of 29 July 1881 must be ruled unconstitutional; that this declaration of unconstitutionality is applicable to all defamation charges that have not been definitively ruled on by the courts on the day this decision is published,

HELD:

Article 1.- Article 35(5) of the Law of 29 July 1881 on the Freedom of the Press is declared contrary to the Constitution.

Article 2.- The declaration of unconstitutionality of Article 1 shall take effect on the date of publication of this decision in the conditions set down by its recital 7.

Article 3.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23 11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 19 May 2011, sat on by: Mr Jean−Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 20 May 2011.