Information Note on the Court’s case-law No. 43
June 2002
Colombani and Others v. France - 51279/99
Judgment 25.6.2002 [Section II]
Article 10
Article 10-1
Freedom of expression
Conviction of journalists for the offence of insulting a foreign Head of State: violation
Facts: In the context of the examination of Morocco’s application for membership of the European Communities, a report on drug production and trafficking in that country was drawn up at the request of the Commission of the European Communities. The first version of the report mentioned the names of persons involved in drug trafficking. A second version was produced at the Commission’s request, with the traffickers names edited out. This toned-down version of the initial report was published and discussed in the weekly newspaper "Le Monde". The original version remained confidential for a certain time, then began to circulate. One year and nine months after the original version of the report had been submitted to the Commission, Le Monde reviewed it in an article announced on the front page of the newspaper under the headline "Morocco: leading world hashish exporter", with the sub-heading "A confidential report casts doubt on King Hassan II’s entourage". The article appeared on page 2 under the headline "A confidential report implicates the Moroccan Government in hashish trafficking". Following a complaint by the King of Morocco, criminal proceedings were brought against the first applicant, publishing director of Le Monde, and the author of the article, the second applicant, for insulting a foreign head of state. They were acquitted at first instance on the grounds, inter alia, that the journalist had acted in good faith, pursuing a legitimate aim. They however found guilty of insulting a foreign head of state on appeal, on the basis of Article 36 of the law of 29 July 1881 on freedom of the press. This offence, which only applies in the event of a personal attack on a foreign head of state, is subject to specific legal rules which, unlike those governing defamation, place the burden of proving malicious intent on the plaintiff but do not allow the defence of truthfulness (exceptio veritatis) to be put forwardas an exonerating factor. The court of appeal sentenced each of the applicants to a fine, ordered them to pay symbolic damages to King Hassan II and to pay costs, and ordered the newspaper to issue a press release publishing the details of the conviction. The court of appeal criticised them for malicious intent towards the royal entourage, for accusing the king of duplicity and hypocrisy, for failing to check that the content of the report was accurate, and for lacking good faith. They were also criticised for not having attempted to ascertain whether the report was still relevant at the time when the article was published and for having failed to consult the Moroccan authorities about the report, since they had failed to mention a white paper on this subject published by the Moroccan authorities after the initial version of the report had been submitted. The Court of Cassation upheld the decision.
Law: Article 10 – The applicants’ conviction was seen as “interference” in the exercise of their right to freedom of expression. The interference, which was “prescribed by law”, pursued the legitimate aim of protecting the reputation or rights of others. There remained the question of whether the interference was “necessary in a democratic society”. When the press contributed to public debate on issues giving rise to legitimate concern, it should in theory be able to rely on official reports without having to carry out independent research. In the instance case, the information provided by the applicants was of legitimate public interest and they acted in good faith in supplying precise and credible information based on an official report whose accuracy did not require checking on their part. The grounds relied on by the domestic courts to convict the applicants were therefore unconvincing. Under domestic law, the offence of insulting a foreign head of state, unlike the ordinary offence of defamation, did not provide for any exemption from criminal liability in the event of the truth of the allegations being proved. The unavailability of the defence of truthfulness (exceptio veritatis) constituted an excessive measure for protecting a person’s reputation and rights, even if that person was a head of state or government. The ordinary offence of defamation, which was proportionate to the aim pursued, was sufficient to protect any head of state from attacks on his honour or reputation. On the other hand, the offence provided for under Article 36 of the law of 29 July 1881 tended to confer on heads of state a status going beyond the general law and shielding them from criticism on the sole grounds of their function or status, without taking any account of the interest that lay in the criticism. This special protection afforded to foreign heads of state under the law, which gave them an inordinate privilege at variance with current political practices and ideas, did not satisfy any “overriding social need”. In short, even though the reasons put forward by the respondent state were relevant, they were not sufficient to prove that the interference complained of was “necessary in a democratic society”, notwithstanding the national authorities’ margin of appreciation.
Conclusion: violation (unanimously).
Article 41 – The Court considered that there was a causal link between the sums which the applicants had been sentenced to pay and the violation found, and therefore awarded them those sums. The Court also awarded them a sum in respect of costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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