Information Note on the Court’s case-law 62

March 2004

Radio France and Others v. France - 53984/00

Judgment 30.3.2004 [Section II]

Article 10

Article 10-1

Freedom to impart information

Conviction of radio journalists for defamation: no violation

Article 6

Article 6-2

Presumption of innocence

Presumption of criminal liability of editor responsible for radio programmes: no violation

Article 7

Article 7-1

Nullum crimen sine lege

Foreseeability of rules of criminal liability: no violation

Facts : The applicants were convicted of defamation for broadcasting on the radio over a twenty-four-hour period a number of bulletins attributing to a former sous-préfect , Mr J., an active personal role in the deportation of a thousand Jews in 1942. The courts ruled that these accusations, which were false, amounted to defamation. Responsibility for the offence was ascribed to the editorial director of the applicant company on the ground that he had a statutory duty to check the content of bulletins broadcast at regular intervals, although he could not be held responsible for the first such bulletin. The journalist who presented the original bulletin could not be exonerated o n the ground of his good faith as he had not proved that he had not expressed hasty and excessive conclusions. The editorial director and the journalist were ordered to pay a fine of FRF 20,000 each and FRF 50,000 in damages. An order was also made requiri ng the broadcasting of a communiqué informing the public of the conviction. The Court of Cassation dismissed an appeal on points of law by the applicants.

Law : Article 7 – The applicants had submitted that the rules of criminal responsibility as applied to the editorial director in regard to the obligation he was under to check the content of bulletins before they were broadcast could not make him guilty of the offence since the bulletins complained of had been broadcast live. Admittedly, these rules had no t previously been applied in similar circumstances. However, Article 7 did not prohibit the gradual clarification of the rules of criminal responsibility through judicial interpretation from one case to another, “provided that the result is consistent with the essence of the offence and reasonably foreseeable”. Taking into account the particular context in which the radio station concerned was operating (repeating bulletins at regular intervals), the Court  considered that the judicial interpretation follow ed in the present case, to the effect that the editorial director had been placed in a position to check the content of the bulletins beforehand, was consistent with the essence of the offence and “reasonably foreseeable”.

Conclusion : no violation (unanimously).

Article 6 § 2 – The presumption of the editorial director’s criminal responsibility, as publisher, for any defamatory remark broadcast could be rebutted by proving that the person who had uttered the words or broadcast them li ve had acted in good faith. Moreover, in view of the importance of what was at stake – effectively preventing the circulation of defamatory accusations through the media – that presumption remained within the “reasonable limits” required by the Convention. Lastly, the French courts which had heard the applicants’ case had protected their right to due process.

Conclusion : no violation (unanimously).

Article 10 – The order requiring the applicant company to make civil reparation by broadcasting an announcemen t relating to the conviction ( communiqué judiciaire ) had been “prescribed by law”. As regards “journalists’ duties and responsibilities”, the journalist had broadcast incorrect information; in respect of the remainder of the information broadcast he had be en unable to prove that he had exercised the highest caution and particular moderation, which were required both by the extreme gravity of the acts imputed to J. and by repetition of the bulletin on a radio station which could be heard throughout French te rritory. The grounds for the French courts’ finding that J.’s honour and dignity had been impugned were therefore held to be “relevant and sufficient”. The penalties and measures of reparation imposed on the applicants had not been disproportionate in rela tion to the legitimate aim pursued – protecting the reputation and rights of others – in view of the extreme gravity of the acts imputed and the fact that the bulletin had been broadcast sixty-two times on a radio station which covered the whole of French territory. In short, the interference could be regarded as “necessary in a democratic society”.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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