Information Note on the Court’s case-law 56
September 2003
Radio France and Others v. France (dec.) - 53984/00
Decision 23.9.2003 [Section II]
Article 34
Non-governmental organisation
Application lodged by the French national radio company: admissible
Article 6
Article 6-2
Presumption of innocence
Radio broadcasting editor presumed responsible as author of a transmission held to be defamatory: admissible
Article 7
Article 7-1
Nullum crimen sine lege
Conviction allegedly based on an extensive interpretation of the legislation on audiovisual communication: admissible
Article 10
Article 10-1
Freedom of expression
Conviction of a radio broadcasting editor, a journalist and a national radio company for defamation of a public official: admissible
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Complaint not raised before the Court of Cassation on account of old and established unfavourable case-law: admissible
The first applicant is the national broadcasting company Radio France, the second applicant is its director of publication and the third applicant is a journalist for one of its radio news stations. In January 1997, a weekly magazine published an article about Mr Junot, entitled: “revelations 1942-1943: deputy to Jacques Chirac at the Paris town hall between 1977 and 1995, Michel Junot was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. On 31 January 1997, in a radio news bulletin broadcast at 5.00 p.m., the third applicant, citing the weekly magazine as his source, repeated certain items from the article in question, in particular the fact that Mr Junot had organised the departure of a convoy of deportees to the camp at Drancy. The news item was repeated sixty two times on 31 January and 1 February and it was emphasised that it related to an item published by the weekly magazine. It was stated on a number of times in the news bulletins of 1 February that Mr Junot denied the accusations made by the magazine. Mr Junot lodged a complaint against the applicants before the Paris district court for defamation of an official, under the Law of 1881 on the freedom of the press. The district court found the second and third applicants guilty, as principal and accessory respectively, of the offence of public defamation of an official. They were jointly and severally ordered to pay a fine and damages. The applicant company was declared civilly liable and by way of civil reparation was ordered to broadcast a message informing the public of the terms of the judgment. As regards the liability of the second applicant, in his capacity as director of publication, the court considered that he could be exonerated of all responsibility for the first communication, which was broadcast live. It held, however, that the message had then been constantly repeated, which brought the matter within the scope of Article 93-3 of the Law of 29 July 1982 on radio and television broadcasting and rendered the second applicant liable. On appeal by the applicants, the Court of Appeal upheld the judgment at first instance. The applicants’ appeal on a point of law was dismissed. They complained, in particular, of what they maintained was the broad interpretation of Article 93-3 of the Law on radio and television broadcasting, which automatically made the director of publication the perpetrator of the offence where the impugned message was broadcast repeatedly.
Admissible under Articles 6 § 1 and § 2, 7 and 10. a) The objection raised by the Government that the applicant company lacks locus standi is rejected. The Court considers that the national broadcasting company Radio France is not within the category of “governmental organisations”. The Court mentions the following factors: Radio France is not placed under the supervision of the State but under the control of the “independent authority” of the Conseil supérieur de l’Audiovisuel; Radio France does not have a monopoly in sound broadcasting but operates in a sector that is open to competition; it is, essentially, subject to the legislation on incorporated companies, it exercises no powers not subject to the ordinary law in the exercise of its activities and it is subject to the ordinary courts. The Court considers that, although the law assigns public-service tasks to the company and although the company is largely dependent on the State for its finance, the legislature (Law of 30 September 1986 on freedom of communication) has established a regime whose objective is to guarantee its editorial independence and its institutional autonomy. There is thus little difference between the applicant company and companies operating private radio stations and the law, which places sound broadcasting in a competitive context, does not confer on the applicant company a dominant position in that sector. b) The Court rejects the objection of failure to exhaust all domestic remedies in relation to the complaints under Articles 6 § 1 and § 2. Before the applicants lodged their appeal on a point of law, the Court of Cassation had held that the presumption of liability of the director of publication provided for in the Law of 1881 on the freedom of the press was consistent with Article 6 § 2. The Law of 1982 on radio and television broadcasting reproduces a legal mechanism comparable with that of the Law of 1881 and establishes the same presumption. The Court considers that the applicants could legitimately conclude from the consistent case-law of the Court of Cassation that a ground of appeal on a point of law based on Article 6 of the Convention would have no prospect of success and it therefore rejects the objection.
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