Freedom of expression: an absolute right ?

Can we write everything under the right to freedom of expression about an individual or a company without harming its online reputation? The right to freedom of expression offers anyone the opportunity to give its opinion. However, this right does not mean that we can say everything. Various texts come restrict freedom of expression to protect other rights such as the right to respect for private life. This constitutional and international freedom has some limits.  What are the limits of that right?

1- Defamation

In France, the law of 29 July 1881, the cornerstone of the right of communication and freedom of the press, is a repressive but not restrictive text. This means that it is not necessary to get permission to post comments in the press. The repression of defamation punishes “any allegation or imputation of a fact which prejudices the honor or the dignity of a person, provided that the bad faith of the author of the comments to be demonstrated”.

To retain the defamation’s offense, it must be able to demonstrate the existence of the following conditions:

  • The allegation of a specific fact;
  • The person responsible must be identified;
  • The attack on the honor or reputation of a person must be characterized;
  • The public nature of defamation

The defamation’s purpose is to sanction the fact of saying intentionally false statements that harm the reputation of individuals or legal entities.

2- Injury

According to Article 29 of Press freedom law of 1881, “the notion of “injury” refers to any offensive, contemptuous or invective expression which prejudices the honor or the dignity of a person”.

3- Denigration

Since a judgment of the Court of Appeal of Versailles of 9 September 1999, denigration can be defined as the act of harming the brand image of a company or of a designated or identifiable product in order to entice customers.

This is the case with comments made by a former employee or a customer of the company, or by an unfair competitor, for example.

This is a fault according to articles 1382 and 1383 of the Civil Code underlying the liability law. The victim must prove a fact at fault, injury and a causal link between the fault and the damage.

Unlike defamation, denigration does not concern a person, but products, services or performance of a company.

4- Right to one’s image and the right to privacy

According to article 9 of the Civil Code,” everyone has the right to respect for its private life”.

Everyone has the right to object to the publication without prior authorization of the representative photograph. This refusal does not hinder freedom of expression.

The judge will take into account the nature of the publication, if the revealed facts are already known, if the subject is about current events or responds to a debate of general interest.

FullSizeRender (5)Mazal Levy

After obtaining a Master 1 of business Law  I chose this year to specialize in law digital economic law, a growth area for whom I have a deep interest.

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