Behind the facade of justice: French defamation law and freedom of what?
I knew that Lurçat's defamation trial was likely to be a short one.
The first France 2 libel suit, against Karsenty (see this for some background as to what these trials are about), had lasted only a few hours and was heard on a single afternoon. This had surprised me, and sparked a host of questions: why so short? Why hadn't the defense compelled the release of the France 2 video taken by cameraman Talal on that fateful day at the Netzarim junction? Why had so little evidence in general been heard? In other words, what was going on here?
What I hadn't realized was how US-centric my questions had been. Yes, of course, I knew that France has a different legal system than ours: theirs was based mainly on the Napoleonic Code, whereas ours was a predominantly common law system of evolving and changing interpretations of previous case law and statutes, under the overarching protection of the Constitution and Bill of Rights.
But surely, as two Western countries purporting to share a love of liberty, the law of France and that of the US shouldn't be all that different.
It was only when I looked into the law of defamation under the French legal system that I realized the differences were not subtle, as I'd previously thought. They were major, reflecting profound differences in the attitudes of each country towards justice, its citizenry, society--and, in particular, the value and desirability of freedom of speech.
Here is a summary of French law concerning defamation; see pages thirteen and fourteen for the relevant material.
Essentially, France has made it incredibly easy to win a libel suit. Nearly all you need to do is to show that you were defamed (“any allegation or imputation of an act affecting the honor or reputation of the person or body against whom it is made”). I said “nearly all” because yes, there is a defense, and that is truth.
Well, that doesn’t sound so bad, does it? But it is bad, and this is why: the burden of proof in France falls on the defendant.
That’s such a dry, legal phrase: “burden of proof.” But what it means in practice is that it's up to the person who made the defamatory statement to prove to a three-judge panel (not a jury; this reflects the fact that the French have far less trust in the decisions of its ordinary citizen than the US does) that the defamatory statement was true. Or, if the statement concerned a matter of public importance, he/she is required to prove that he/she conducted a serious investigation before making the statement, and that the statement was measured and objective and without even a trace of personal hostility.
Check out that word, prove. It means just what it says, not “indicate he/she had reason to believe it was true” or “suggest it might be true,” or even “prove it was most likely true.” It places the burden of proof in defending against a libel suit unconscionably-- almost ludicrously--high.
Compare this to the American standard for defamation, particularly for public figures (and Charles Enderlin is nothing if not a public figure). The burden of proof in the US is entirely on the plaintiff to prove the statement was defamatory, false, and malicious. In New York Times v. Sullivan in 1964, the Supreme Court established the standard: the First Amendment protected "uninhibited, robust, and wide-open" criticism of public officials, at least unless it could be proved that the critic was deliberately lying or showed "reckless disregard" for the truth.
It turns out the US is serious—very very serious—about protecting First Amendment freedom of speech rights. It’s also less concerned than a country like France about the power of insults, or with the need to prevent slurs on one’s honor. “Whatever,” says the US, we can take it; what’s most important is the right to free speech. What’s most important to the French seems to be that society be courteous at all costs, even to public figures. And in making accusations against public figures, even a private citizen must make sure he has conducted a thorough investigation.
Of course, the need for a thorough investigation doesn’t seem to apply to Charles Enderlin or France 2. He’s free to broadcast any charge he wants (at least, as long as it's PC)—for example, that the IDF murdered Mohammed al-Durah. He needs neither to prove his assertion, nor to defend himself against the charges that he misrepresented the facts, nor to show that he was conscientious in his duty as a journalist when he jumped to that conclusion based on Talal’s tapes--which present a one-minute scene embedded in almost a half-hour of other scenes that are obviously faked, do not show either father or son being hit and bleeding, and give no indication that the gunfire making the bullet holes in the wall behind al-Durah was coming from the IDF position, much less that he was shot by them.
So even if many murders were committed in the name of vengeance for al-Durah’s death at the hands of those nefarious Israeli soldiers, Enderlin knows there is no danger that anyone will call him to account--except, perhaps, the likes of defendants Karsenty, Lurçat, and Gouz. And he knows that he can always sue them with the full force of French law behind him, a law that presumes their guilt and his outraged innocence.
Well, France is France, you might say. It’s gotten along with this crazy system for hundreds of years, right? If they’re so deeply concerned that their sacred honor remain unbesmirched--even by “mere words”--and so unconcerned with the loss of their freedom of speech, what’s it to us?
Just this: we’re all potentially "caught in the crossfire" of the French press and the consequences of its allegations. It seems able to make nearly any assertion it wants with impunity, and fully ready to successfully squelch those French citizens who might dare to question the mighty reputations of France 2 and Charles Enderlin, who in 1988 earned the coveted title of grand reporter (you can look it up.)
The French press is a loose cannon, unable to be successfully challenged by its citizenry. And that's the way the government wants it; after all, France 2 is owned and run by that government.
C'est la vie, c'est la guerre.