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Dolores Utrilla
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26th March 2020
Human Rights

ECtHR: French criminal courts must conduct proportionality tests when restricting the freedom of expression

Today, the European Court of Human Rights (ECtHR) gave its judgment in Tête v. France (application no. 59636/16), a case concerning the freedom of expression under Article 10 of the European Convention of Human Rights (ECHR).

The applicant claims that French authorities breached this provision when they convicted him for malicious falsehood on account of an open letter that he wrote to the President of the French Financial Markets Authority (AMF) accusing the Olympique Lyonnais Group and its CEO of providing false and misleading information during the company’s stock-market flotation.

By this judgment, the ECtHR finds that France has breached Article 10 ECHR because the French authorities acted in a disproportionate manner. The Strasbourg-based Court noted that the aim pursued, consisting of the protection of the reputation or rights of others, was a legitimate aim, but found that the reasons given for the domestic courts’ decisions were insufficient to justify the restriction of the applicant’s freedom of expression.

In particular, the ECtHR considered that the necessity of the interference was not justified, taking into account, firstly, that the controversial statements by the applicant concerned an issue of general concern and were made in a context of political and campaigning activity; secondly, the seriousness of the interference – amounting to sanctions of a criminal nature; and, thirdly, the fact that the applicant’s statements gave rise to no action by the AMF against the CEO of the OL Group.

The ECtHR noted that both the Paris Court of Appeal and the Court of Cassation confined themselves to ascertaining whether the constituent elements of the criminal offence were present, without taking into account in its reasoning the applicant’s right to freedom of expression, even though he had expressly raised it in his arguments. They therefore failed to carry out the proportionality test required under Article 10 ECHR.

By this judgment, the ECtHR explicitly rejected the French Court of Cassation’s case law according to which, once it has been found that certain statements fall within the scope of the criminal offence of malicious falsehood under national criminal law, this automatically implies a breach of the duties and responsibilities inherent in the exercise of freedom of expression.  The ECtHR clarified that the question of such a breach must in principle be assessed in the light of the circumstances of each case, in the context of a proportionality test.

The judgment is available here (in French).

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