Monitoring the case of Mediapart, 11th February 2021

On the 11th February 2021, a trial was held in the 17th chamber of the Paris judicial court, regarding the case of Mediapart, an independent French online investigative journal. Mediapart is accused of libel by François de Rugy, a French politician. The two accused are Edwy Plenel, the publication director of Mediapart, and Fabrice Arfi, a journalist. Defamation is prosecuted based on articles 29 and 31 of the 1881 law on freedom of the press. Article 29 defines libel as any allegation or imputation of a fact which damages the honour or the consideration of the person or body to which the act is imputed. Article 31 punishes libel committed with the same means, against the President, members of the ministry, agents of public authority, because of their functions or their quality.

The sued article was published on the 11th of July 2019 on the Mediapart website. It is one of the articles (concerning François de Rugy) published by Mediapart in the summer of 2019. Those articles highlighted the use of public funds for private use by François de Rugy who at that time was the Minister of energy and ecology. The publication of those articles shortly led to the resignation of François de Rugy from the ministry.

François de Rugy decided to sue one article published by Mediapart about his supposed use of social housing even though the conditions allowing him to benefit from such housing were not respected. On the 3rd of September 2019, François de Rugy summoned Mediapart for public defamation towards a citizen in charge of a public mandate, arguing that the article caused damage to his honour. He requests the condemnation for libel at the symbolic fine of one euro, the removal of the article, as well as a report from Mediapart.

The audience began with the development of the grounds for nullity presented by the defence, the correctional tribunal being competent to certify any nullity of procedure that has been presented before him. In this instance, the defence argued nullity based on article 53 of the 1881 law on freedom of the press. The judges heard the defence before moving forward on the debates conducted by the president of the tribunal. After the reading of the report and the institution of the civil proceedings by the plaintiff, the two accused were questioned by the lawyer of the plaintiff and the defence lawyer. François de Rugy was not present during the audience.

Two defence witnesses were heard after declining their identity and taking an oath. The defence lawyer requested to the plaintiff that it be noted that they would not prosecute the witnesses, but the plaintiff lawyer refused to engage in this issue. The court declined to ask the question, considering that it was not its jurisdiction to request such an undertaking. After the witnesses’ testimonies, the plaintiff lawyer and defence lawyer made their plea, as well as the prosecutor.

It should be noted that this case takes place in the context of freedom of the press and transparency of elected politicians. The editor-in-chief of Mediapart, Edwy Plenel, has 260 legal proceedings for libel. Many interviews were conducted ahead of the hearing such as interviews made by the plaintiff, who until the day before the hearing spoke in the media. The defence accused the plaintiff of instrumentalizing justice for the benefit of political communication.

During the monitoring of the trial, no violations were observed, howewer, such case gives an opportunity to highlight the position of the ECtHR regarding freedom of expression and limits of acceptable criticism.

Article 10 of the European Convention on Human Rights (ECHR) protects the right to freedom of expression. It protects the right of journalists to disclose information of public interest, provided that they act in good faith and use a verified factual basis, as well as provide reliable and accurate information as required by journalistic ethics. (Bergens Tidende and Others v. Norway §53; Goodwin v. the United Kingdom §39; Fressoz and Roire v. France §54).

The protection of the freedom of expression promotes the independence and diversity of the media, the safety of journalists and other actors in the media. Indeed, freedom of expression is one of the most important principles in a democratic society. In the Handyside v the United Kingdom case in 1976, the Court states that “freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 (art. 10-2), it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”.

The Court takes into account the status of the individual targeted by defamatory statements. Indeed, the Court in the Lingens v. Austria Case in 1986 sets for the first time the principle that “The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10 para. 2 (art. 10-2) enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.” (Lingens v. Austria, §42, 1986) This principle of tolerance applies to all members of the political class for example a minister (Turhan v. Turkey, §25).

The case has been put up for deliberation and the ruling will be given on 2nd April 2021.