Authors and publishers of books
II. RELEVANT DOMESTIC LAW AND PRACTICE 28. The relevant parts of the Freedom of the Press Act of 29 July 1881 provide as follows: Section 29 “ It shall be defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged. The direct publication or reproduction of such a statement or allegation shall be an offence, even if expressed in tentative terms or if made about a person or body not expressly named but identifiable by the terms of the disputed speeches, shouts, threats, written or printed matter, placards or posters. It shall be an insult to use any abusive or contemptuous language or invective not containing an allegation of fact. ” Section 32(1) “ Anyone who by any of the means set out in section 23 [including ‘ written ’ and ‘ printed ’ matter and ‘ any other written medium ’ ‘ sold or distributed, or offered for sale ’ ] makes a statement that is defamatory of private individuals shall be liable on conviction to six months ’ imprisonment and a fine of 12,000 euros, or to one only of those sentences ”. Section 42 “ The following persons shall be liable, as principals, in the following order, to penalties for offences committed via the press: 1. Publication directors or publishers, irrespective of their occupation or title ... ” 29. An individual may be defamed through the portrayal of characters in a novel or play, without it being necessary for the name of the imaginary person to correspond to that of the individual who claims to have been defamed, provided he or she is referred to in a clear manner such that the public cannot be mistaken (Paris Court of Appeal, 8 March 1897). On the other hand, the fact that the name of the imaginary person corresponds to that of a living person is not sufficient for the latter to allege defamation, even if there are certainly similarities of character and diffusion (Algiers Court of Appeal, 20 February 1897). Such situations mostly give rise to proceedings for civil liability and damages are awarded whenever there has been prejudice, that is to say when the public has unavoidably been led to associate the living person with the imaginary person and where an error of judgment can be attributed to the author (Paris Court of Appeal, 24 April 1936, and Paris Court of Appeal, 8 November 1950). ( Source: Juris -Classeur de droit pénal, 1996, Presse -Diffamation, fascicule 90, “ 86 ‑ personnages littéraires ” ( literary characters ) ). THE LAW I. JOINDER OF THE APPLICATIONS 30. In view of the connection between the applications as regards the facts and the substantive questions that they both raise, the Court considers it appropriate to join them in accordance with Rule 42 § 1 of the Rules of Court. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 31. The applicants complained that there had been a violation of their right to freedom of expression on account of their conviction for defamation or complicity in defamation. They relied on Article 10 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” A. The parties ’ submissions 1. The applicants 32. The first two applicants complained that their conviction for defamation and complicity in defamation on account of the publication of Le Procès de Jean-Marie Le Pen ( “ Jean-Marie Le Pen on Trial ” ) had constituted a “ penalty ” that was not “ prescribed by law ” within the meaning attributed to that notion by the Court ’ s case-law. In their submission, notwithstanding the apparent precision of section 29(1) of the Act of 29 July 1881 upon which it had been based and the extensive case-law concerning defamation, their conviction had not been “ foreseeable ”. Their main criticism of the Paris Court of Appeal was that it had sought to ascertain the author ’ s thoughts from the words of fictional characters. This had, moreover, depended on whether or not a particular character was presented “ positively ”. In examining the offending passages of the novel in such a way the court had used a process of deduction, which, they claimed, was a subjective and random approach that did not allow writers to predetermine the limits to authorised speech with which they were supposed to comply. As a result, and since that approach had not been applied with the same stringency to all the impugned passages, the judgment and reasoning of the Court of Appeal had in a number of respects been inconsistent and incoherent. Secondly, the applicants considered that such a “ penalty ” had not been “ necessary in a democratic society ”. They pointed out in particular that their conviction as author and publisher of a text which was purely fictional, and which was presented to readers as such, had not been justified by any “ pressing social need ”. They laid emphasis on the novelist ’ s freedom of expression and, referring in particular to Lingens ( cited above ), on the fact that the book in question concerned a politician. They added that the domestic courts had distorted the remarks in question and that the “ penalty ” inflicted, being criminal in nature, had been disproportionate. 33. The third applicant further complained that his conviction for defamation on account of the publication in the newspaper Libération of a petition signed by ninety-seven writers, accompanied by certain passages from the novel “ Jean-Marie Le Pen on Trial” that had been found to be defamatory by the Paris Criminal Court, had not been “ necessary ” within the meaning of Article 10 of the Convention. Referring in particular to the importance of the freedom of the press in a democratic society, and stressing that the impugned article had been published in the context of a political debate on a matter of general concern, he submitted that his conviction had been all the more disproportionate to the aim pursued, namely the protection of Mr Le Pen ’ s reputation, as Mr Le Pen himself was inclined to be provocative and to use offensive language when expressing himself through the media. 2. The Government 34. The Government did not dispute the fact that the applicants ’ conviction constituted interference with the exercise of their right to freedom of expression but contended that it was “ prescribed by law ”, pursued a “ legitimate aim ” and, having regard to the margin of appreciation afforded to States parties in such matters, was “ necessary in a democratic society ” to achieve that aim, in accordance with the second paragraph of Article 10. 35. On the first point, the Government pointed out that the applicants ’ conviction had been based on sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. The Government dismissed the argument of the first two applicants that the application of those provisions to their case had not been foreseeable, indicating in particular that there had been previous examples of proceedings for defamation committed through a literary work (they cited a judgment of the Paris Court of Appeal from 8 March 1897). Moreover, in the Government ’ s submission, the second applicant had admitted during the appeal proceedings that he had been aware of the risk that, on publishing the book in question, Mr Le Pen might bring proceedings against him. As to the allegedly inconsistent criteria on which the domestic courts had based their decisions, that question did not relate to the foreseeability of the law but to whether the interference had been necessary. 36. As to the second point, the Government argued that the interference had sought to ensure the “ protection of the reputation or rights of others ” – those of Mr Le Pen and the Front National – this being one of the legitimate aims enumerated in the second paragraph of Article 10. 37. As to the necessity and proportionality of the interference in the case of the first two applicants, the Government considered that the tribunals of fact had coherently analysed the defamatory nature of the relevant passages from the book and had based their decisions on “ relevant ” and “ sufficient ” reasons. They further emphasised that the courts had not convicted the first two applicants on account of the aversion expressed in the impugned work towards the ideas defended by the Front National and its Chairman, but only after weighing up the various interests at stake. Whilst the Government were aware that the limits of acceptable criticism were broader where politicians were concerned, the offending comments had clearly damaged the reputation of the civil parties. Moreover, in so far as they were not value judgments but allegations of fact susceptible of proof, the conviction of the applicants on the grounds, that they had not carried out a “ basic verification ” of the reality of the allegations before publishing them – when they had been able to do so – was compatible with Article 10 of the Convention. The Government added that the applicants had been given the opportunity to prove their good faith, that the penalties imposed on them and the amount of damages awarded against them were not disproportionate, and that the courts had ordered neither the seizure nor the destruction of the book. The Government arrived at the same conclusion in the case of the third applicant. In their submission, the domestic courts had struck a fair balance between the various interests at stake ( respect for free discussion of political ideas by the press, protection of the reputation of others), having regard to the fact that the reputation-damaging remarks were serious and had been published in a national newspaper with a large circulation. They added that the publication of the impugned petition had gone beyond the level of participation in a political controversy surrounding the far right and in fact consisted in the attribution to Mr Le Pen and his party of unproven offences. In actual fact, by publishing the extracts from the book for which the first two applicants had been convicted, the third applicant had sought to contest the defamatory nature of the impugned allegations and therefore to give credence to the offending remarks. In doing so he had failed to fulfil the obligation of care and moderation inherent in the “ duties and responsibilities ” of journalists. The Government added that the domestic courts had not punished the third applicant for criticising the conviction of the first two applicants, or for informing the public that the signatories of the impugned petition supported them, but for doing so in a way that constituted a reiteration of the offence. 38. The Government concluded that the applicants ’ complaints that there had been a violation of Article 10 of the Convention were manifestly ill-founded and therefore inadmissible. B. The Court ’ s assessment 1. Admissibility 39. The Court observes that this aspect of the applications is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. 2. Merits 40. It is not in dispute between the parties that the applicants ’ conviction constituted “ interference by public authority ” with their right to freedom of expression. Such interference will breach the Convention if it fails to satisfy the criteria set out in the second paragraph of Article 10. The Court must therefore determine whether it was “ prescribed by law ”, whether it pursued one or more of the legitimate aims listed in that paragraph and whether it was “ necessary in a democratic society ” in order to achieve that aim or aims. (a) “ Prescribed by law ” 41. The Court reiterates that a norm cannot be regarded as a “ law ” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice. The Court further reiterates that the scope of the notion of foreseeability depends to a considerable degree on the content of the text in issue, the field it is designed to cover and the number and status of those to whom it is addressed. A law may still satisfy the requirement of foreseeability even if the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. This is particularly true in relation to persons carrying on a professional activity, who are used to having to proceed with a high degree of caution when pursuing their occupation. They can on this account be expected to take special care in assessing the risks that such activity entails (see, for example, Cantoni v. France, 15 November 1996, § 35, Reports of Judgments and Decisions 1996 ‑ V, and Chauvy and Others v. France, no. 64915/01, §§ 43-45, ECHR 2004 ‑ VI ). 42. In the present case, the legal basis for the applicants ’ conviction can be found in accessible and clear provisions, namely sections 29 and 32 of the Act of 29 July 1881. The first of these provisions states in particular that it is “ defamatory to make any statement or allegation of a fact that impugns the honour or reputation of the person or body of whom the fact is alleged ” and according to case-law this can be done through a work of fiction when the individual who claims to have been defamed is referred to in a clear manner ( see paragraphs 28-29 above). Whilst the case-law on this specific point appears dated and rather scant – the Government confined themselves to citing a judgment of the Paris Court of Appeal from 8 March 1897 – the Court must take account of the fact that the first and second applicants are respectively an author and the chairman of the board of directors of a publishing company. Being professionals in the field of publishing it was incumbent on them to apprise themselves of the relevant legal provisions and case-law in such matters, even if it meant taking specialised legal advice. Accordingly, since the novel in issue specifically named Mr Le Pen and the Front National, they could not have been unaware that if they published it there was a risk that defamation proceedings might be brought against them by Mr Le Pen and his party on the above-mentioned legal basis. As to the criteria applied by the Paris Court of Appeal in assessing whether or not the impugned passages of the novel were defamatory, this question in reality relates to the relevance and sufficiency of the grounds given by the domestic courts to justify the impugned interference with the right of the first two applicants to freedom of expression. The Court will therefore examine this question when it comes to assess whether the interference was “ necessary ”. 43. In conclusion, the Court considers that the contention of the first two applicants that they were unable to foresee “ to a reasonable degree ” the consequences that the publication of the book was liable to have for them in the courts is untenable. It therefore finds that the interference in issue was “ prescribed by law ” within the meaning of the second paragraph of Article 10 of the Convention. (b) Legitimate aim 44. The Court finds that the interference unquestionably pursued one of the legitimate aims set out in paragraph 2 of Article 10: the protection of “ the reputation or rights of others ”, namely of Jean -Marie Le Pen and the Front National; moreover, this is not a matter of dispute between the parties. (c) Necessary in a democratic society (i) General principles 45. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, 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. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “ democratic society ”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective “ necessary ”, within the meaning of Article 10 § 2, implies the existence of a “ pressing social need ”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “ restriction ” is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify it are “ relevant and sufficient ” and whether it was “proportionate to the legitimate aim pursued”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts (see, among many other authorities, Hertel v. Switzerland, 25 August 1998, § 46, Reports 1998 ‑ VI; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, §§ 68-71, ECHR 2004 ‑ XI; Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II; and Mamère v. France, no. 12697/03, § 19, ECHR 2006 ‑ XIII ). 46. There is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance (see Brasilier v. France, no. 71343/01, § 41, 11 April 2006 ) – or in matters of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Brasilier, cited above). Furthermore, the limits of acceptable criticism are 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 (see, for example, Lingens, cited above, § 42; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 40, 27 May 2004; and Brasilier, cited above). (ii) Application of the above principles ( α ) The first two applicants 47. As observed by the Paris Court of Appeal in its judgment of 13 September 2000, the book whose publication resulted in the applicants ’ conviction for defamation and complicity in defamation is a “ novel ”, a “ creation of the imagination ” (see paragraph 17 above). A novel is a form of artistic expression, which falls within the scope of Article 10 in that it affords the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Those who create or distribute a work, for example of a literary nature, contribute to the exchange of ideas and opinions which is essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression (see, among other authorities, Karataş v. Turkey [GC], no. 23168/94, § 49, ECHR 1999 ‑ IV, and Alınak v. Turkey, no. 40287/98, §§ 41-43, 29 March 2005). Furthermore, in assessing whether the interference was “ necessary ” it should be borne in mind that a novel is a form of artistic expression that, although potentially maintaining its readership for a longer period, appeals generally to a relatively narrow public compared with the print media ( in this respect see Alınak, cited above, § 41). Consequently, the number of persons who became aware of the remarks in issue in the present case and, accordingly, the extent of the potential damage to the rights and reputation of Mr Le Pen and his party, were likely to have been limited. 48. The impugned novel, which was inspired by real events but adds fictional elements, recounts the trial of a Front National militant, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. Published under the title Le Procès de Jean-Marie Le Pen (“Jean-Marie Le Pen on Trial”), it openly raises questions about the responsibility of the Front National and its Chairman in the growth of racism in France and about the difficulty of combating this scourge ( see paragraphs 11-12 above). The work therefore unquestionably relates to a debate on a matter of general concern and constitutes political and militant expression, hence this is a case where a high level of protection of the right to freedom of expression is required under Article 10. The margin of appreciation enjoyed by the authorities in assessing the “ necessity ” of the penalty imposed on the applicants was thus particularly limited ( see paragraph 46 above; see also Steel and Morris, §§ 88-89, cited above, and Mamère, cited above, § 20). 49. The Court notes at the outset that the examination of the applicants ’ case by the Paris Court of Appeal was duly carried out in this kind of perspective. In its judgment of 13 September 2000, the Court of Appeal found that to ask the question “ How can Jean-Marie Le Pen be fought effectively? ” was, “ even in a novel, ... not per se defamatory against him ” and that “ the legitimacy of the aim pursued by the defendants through the novel, namely ‘ to fight against Jean-Marie Le Pen effectively ’, in other words to engage in a political combat, [could not ] be challenged in a democratic society ”. The court admittedly noted that “ [w] ith its claim to be a ‘ combative ’ work, the novel in question, and in particular the passages found to be defamatory, attest [ed] to patent animosity towards the civil parties ”. It nevertheless found that this animosity, being “ explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as chairman of the Front National ”, was “ not directed against the civil party in person ” and “[ could not ] be regarded as reprehensible per se ” ( see paragraphs 17-19 above). 50. It thus appears that the penalty imposed on the applicants by the domestic court was not directed against the arguments expounded in the impugned novel but only against the content of certain passages that were found to be damaging to “ the honour or reputation ” of the Front National and its Chairman within the meaning of section 29 of the Act of 29 July 1881. Moreover, whilst the initial proceedings against the applicants in the criminal court concerned six passages from the novel ( see paragraph 13 above), they were ultimately convicted on account of the following three passages alone: [ page 10: a view attributed by the author to anti-racist demonstrators who have gathered outside the law courts] “ ... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the leader of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too. ” [ pages 105- 06: here the lawyer is addressing the court] “ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt. ” [ page 136: a statement by the defendant ’ s lawyer on television after his client ’ s suicide in prison ] “ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself. ” 51. However, the applicants criticised the Court of Appeal for having, for the purposes of its examination of their case, sought to ascertain the author ’ s thoughts from the remarks of fictional characters in a fictional situation and for reaching its conclusions as to the defamatory nature of the passages in issue on the basis of whether the author had distanced himself from those remarks or not. In the applicants ’ submission, such an approach led to the imprisonment of literature in a set of rigid rules at odds with the freedom of artistic creation and expression. The Court does not share that view. It considers, on the contrary, that the criteria applied by the Paris Court of Appeal in assessing whether or not the passages in issue were defamatory complied with Article 10 of the Convention. In this connection the Court observes that, in its judgment of 13 September 2000, the Court of Appeal pointed out first of all that all writings, even novelistic, were capable of “ impugn[ing] the honour or reputation of [a] person ” within the meaning of section 29 of the Freedom of the Press Act of 29 July 1881 and therefore of resulting in a conviction for defamation. That approach is consistent with Article 10 of the Convention. Admittedly, as noted above ( see paragraph 47), anyone who, for example, creates or distributes a literary work contributes to an exchange of ideas and opinions which is essential for a democratic society, hence the obligation on the State not to encroach unduly on their freedom of expression. This is especially the case where, like the novel in issue in the present case, the work constitutes political or militant expression ( see paragraph 48 above). Nonetheless, novelists – like other creators – and those who promote their work are certainly not immune from the possibility of limitations as provided for in paragraph 2 of Article 10. Whoever exercises his freedom of expression undertakes, in accordance with the express terms of that paragraph, “ duties and responsibilities ”. 52. The Court further observes that, in assessing whether or not the passages from the novel it was called upon to examine were defamatory, the Court of Appeal sought to determine whether they effectively “ impugned the honour and reputation ” of Mr Le Pen and the Front National. Inasmuch as the Court is entitled to judge (see, for example, Mamère, cited above, § 22), the domestic court ’ s findings on this point cannot be criticised in view of the virulent content of the impugned passages and the fact that they specifically named the party and its chairman. Lastly, it is apparent from the judgment of 13 September 2000 that, in reality, it was for the author ’ s benefit that the Court of Appeal sought additionally to determine his thoughts. It considered that, where remarks “ impugn[ing] the honour and reputation of [a] person ” were made by a narrator or by characters in a “ work of fiction ”, only those that reflected the thoughts of the author were punishable under the Act of 29 July 1881, and not those remarks from which the author really distanced himself in his work. As a result, the application of this criterion led the court to find that one of the four passages referred to it was not defamatory. 53. The Court of Appeal further verified whether the applicants were entitled to rely on good faith as a defence, which would be the case, under domestic law, if the allegations considered defamatory corresponded to the pursuit of a legitimate aim, if they did not reflect any personal animosity, if they followed a serious investigation, and if they were made using dispassionate language ( see paragraph 19 above). However, the court was unable to accept that defence as it found that, unlike the first two of these conditions, the last two were not satisfied. 54. As to the seriousness of the investigation preceding the publication of the novel, the Court of Appeal stated that “ [s]ince this [was] a work of fiction, [that] question [could] not be assessed as if it were a text intended to inform the reader of real facts or comment on such facts ”. The court nevertheless considered this criterion relevant in the present case, since the novel juxtaposed reality and fiction – observing in this connection that, even though the plot was an imaginary one, the Chairman of the Front National, a real figure, represented the “ focus ” around which the imaginary characters revolved and in relation to which they took shape – and since the ideas, rhetoric, acts and gestures of Mr Le Pen had been very accurately described in the novel. Applying this test, the Court of Appeal found that “ whilst the rhetoric and ideas attributed to [Mr Le Pen and his party], together with the ensuing debates, [were] unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants [had] failed to adduce any specific evidence to show that the use of the wording found to be defamatory had been preceded by basic verification as to the reality supposed to be evoked by such wording ”. 55. The Court considers that this reasoning is consistent with its own case-law. It reiterates in this connection that in order to assess the justification of an impugned statement, a distinction needs to be made between statements of fact and value judgments. While the existence of facts can be demonstrated, the truth of value judgments is not susceptible of proof. The requirement to prove the truth of a value judgment is impossible to fulfil and infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10. The classification of a statement as a fact or as a value judgment is a matter which in the first place falls within the margin of appreciation of the national authorities, in particular the domestic courts. However, even where a statement amounts to a value judgment, there must exist a sufficient factual basis to support it, failing which it will be excessive (see, for example, Pedersen and Baadsgaard, cited above, § 76). Generally speaking there is no need to make this distinction when dealing with extracts from a novel. It nevertheless becomes fully pertinent when, as in the present case, the impugned work is not one of pure fiction but introduces real characters or facts. In the present case, firstly, it was all the more acceptable to require the applicants to show that the allegations contained in the passages from the novel that were found to be defamatory had a “ sufficient factual basis ” as they were not merely value judgments but also allegations of fact, as the Court of Appeal indicated. Secondly, the Court of Appeal adopted a measured approach, criticising the applicants not for failing to prove the reality of the allegations in question but for failing to make a “ basic verification ” in that connection. 56. Having regard to the content of the offending passages, the Court also considers that the Court of Appeal ’ s finding that they were not sufficiently “ dispassionate ” is compatible with its case-law. It is true that, whilst an individual taking part in a public debate on a matter of general concern – like the applicants in the present case – is required not to overstep certain limits as regards – in particular – respect for the reputation and rights of others, he or she is allowed to have recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère, cited above, § 25). It is also true that the limits of acceptable criticism are wider as regards a politician – or a political party – such as Mr Le Pen and the Front National – as such, than as regards a private individual ( see paragraph 4 6 above). This is particularly true in the present case as Mr Le Pen, a leading politician, is known for the virulence of his speech and his extremist views, on account of which he has been convicted a number of times on charges of incitement to racial hatred, trivialising crimes against humanity, making allowances for atrocities, apologia for war crimes, proffering insults against public figures and making offensive remarks. As a result, he has exposed himself to harsh criticism and must therefore display a particularly high degree of tolerance in this context (see, mutatis mutandis, Oberschlick v. Austria (no. 2), 1 July 1997, §§ 31-33, Reports 1997 ‑ IV; Lopes Gomes da Silva v. Portugal, no. 37698/97, § 35, ECHR 2000 ‑ X; and Wirtschafts-Trend Zeitschriften-Verlags GmbH v. Austria, no. 58547/00, § 37, 27 October 2005). 57. The Court nevertheless considers that in the present case the Court of Appeal made a reasonable assessment of the facts in finding that to liken an individual, though he be a politician, to the “ chief of a gang of killers ”, to assert that a murder, even one committed by a fictional character, was “ advocated ” by him, and to describe him as a “ vampire who thrives on the bitterness of his electorate, but sometimes also on their blood ”, “ oversteps the permissible limits in such matters ”. The Court moreover considers that, regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention. The Court will further have regard to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum (see, mutatis mutandis, Sürek (no. 1), cited above, §§ 62 - 63). 58. The Court accordingly arrives at the conclusion that the “ penalty ” imposed on the applicants was based on “ relevant and sufficient ” reasons. 59. As regards the “ proportionality ” of the penalty, the Court notes that the applicants were found guilty of an offence and ordered to pay a fine, so in that respect alone the measures imposed on them were already very serious. However, firstly, in view of the margin of appreciation left to Contracting States by Article 10 of the Convention, a criminal measure as a response to defamation cannot, as such, be considered disproportionate to the aim pursued (see Radio France and Others v. France, no. 53984/00, § 40, ECHR 2004 ‑ II). Secondly, the amount of the fine imposed on the applicants was moderate: EUR 2,286.74 (each); the same finding has to be made as regards the damages they were ordered jointly and severally to pay to each of the civil parties: EUR 3,811.23. The nature and severity of the penalty imposed are factors to be taken into account when assessing the proportionality of the interference (see Sürek (no. 1), cited above, § 64). In these circumstances, and having regard to the content of the impugned remarks, the Court finds that the measures taken against the applicants were not disproportionate to the legitimate aim pursued. 60. In conclusion, the domestic court could reasonably find that the interference with the exercise by the applicants of their right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National. (β) The third applicant 61. The third applicant was convicted of defamation in his capacity as publication director of Libération, on account of the publication in that newspaper ’ s column “ Rebonds ” of a petition criticising the conviction of the first two applicants on charges of defamation and complicity in defamation by the Paris Criminal Court on 11 October 1999. The petition further reproduced the passages of the novel that had been found to be defamatory by that court and challenged that characterisation ( see paragraph 21 above). 62. In publishing the petition the daily newspaper Libération reported on the conviction of the first two applicants by the Criminal Court for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, and on the opinion of those writers that the impugned passages were not defamatory. There is therefore no doubt – as the Government have not in fact disputed – that the article was published in a context of information and ideas imparted on a matter of public interest, namely the controversies surrounding a party of the far right and its Chairman – a subject of political debate – and the conviction of an author and a publisher for the publication of a book which was critical of that party and of its Chairman. Since freedom of the press is thus in issue, this is a case which attracts a particularly high level of protection of freedom of expression under Article 10. In that connection the Court points out once again the essential role of a free press in ensuring the proper functioning of a democratic society. Although the press must not overstep certain bounds, regarding in particular the protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest, including those relating to the administration of justice. Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “ public watchdog ”. Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see, for example, Pedersen and Baadsgaard, cited above, § 71). 63. In its judgment of 21 March 2001 in the case concerning the third applicant, the Paris Court of Appeal pointed out that in its judgment of 13 September 2000 it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article into which those passages had been incorporated, referred back to the grounds set out in the 13 September 2000 judgment, the reasoning behind which, it stated, “ remain[ed] applicable ” ( see paragraph 25 above). In view of its own findings on this matter ( see paragraph 50 above), the Court considers those grounds “ relevant and sufficient ”. 64. The Court of Appeal then dismissed the defence of good faith. In this connection it found that the impugned petition, even more than the novel in issue, reflected the “ direct thoughts ” of its authors since they had presented it as a shift from fiction in two ways : firstly by publishing it even though the passages in question had formed the basis of a conviction; and secondly by indicating : “ If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen ”. The court found that, in doing so, the authors of this text had had no other aim than that of showing their support for the first applicant “ by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”. The Court of Appeal went on to explain: “ The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘ chief of a gang of killers ’ or as ‘ a vampire ’ ”. 65. It thus appears that the third applicant was not punished for reporting on the conviction of the first two applicants for the publication of “ Jean-Marie Le Pen on Trial”, on the support given to them by the ninety-seven writers who signed the petition, or on the opinion of those writers that the impugned passages were not defamatory. Nor was he convicted on the ground that Libération had failed to distance itself from the content of the petition (see, for example, Radio France and Others and Pedersen and Baadsgaard, both cited above, § 37 and § 77 respectively) or for reproducing or criticising a judicial decision – a conviction which would have been difficult to reconcile with Article 10 of the Convention. He was actually convicted because Libération had thus published a petition which reproduced extracts from the novel containing “ particularly serious allegations ” and offensive remarks, and whose signatories, repeating those allegations and remarks with approval, denied that the extracts were defamatory in spite of a finding to that effect against the first two applicants. 66. The Court considers that, within the limits indicated above, the reasoning of the Court of Appeal is consonant with its own findings that the impugned writings were not merely value judgments but also allegations of fact ( see paragraph 5 4 above) and that the Court of Appeal had made an acceptable assessment of the facts in reaching its conclusion that the writings were not sufficiently dispassionate ( see paragraphs 5 6-57 above). On this latter point in particular, having regard to the content of the impugned passages of “ Jean-Marie Le Pen on Trial”, to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation and to the fact that it was not necessary to reproduce them in order to give a complete account of the conviction of the first two applicants and the resulting criticism, it does not appear unreasonable to consider that the third applicant overstepped the limits of permissible “ provocation ” by reproducing those passages. 67. Furthermore, this reasoning is consistent with the boundaries that the press must not overstep, in particular as regards the protection of the reputation and rights of others. The Court reiterates in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “ reliable and precise ” information in accordance with the ethics of journalism. Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “ duties and responsibilities ”, which also apply to the media even with respect to matters of serious public concern. Moreover, these “ duties and responsibilities ” are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the “ rights of others ”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, for example, Pedersen and Baadsgaard, cited above, § 78). 68. Lastly, having regard to the moderate nature of the fine and the damages that the third applicant was ordered to pay ( a fine of EUR 2,286.74 and an award of EUR 3,811.23 to each of the two civil parties), to the content of the impugned writings and to the potential impact on the public of the remarks found to be defamatory on account of their publication by a national daily newspaper with a large circulation, the Court finds that the impugned interference was proportionate to the aim pursued. 69. In view of the foregoing, the Court considers that the domestic court could reasonably find that the interference with the exercise by the applicant of his right to freedom of expression was necessary in a democratic society, within the meaning of Article 10 of the Convention, in order to protect the reputation and rights of Mr Le Pen and the Front National. (d) Conclusion 70. In conclusion, there has been no violation of Article 10 of the Convention either in respect of the first two applicants or in respect of the third applicant. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 71. The third applicant contended that he had not been heard by an “ impartial ” tribunal within the meaning of Article 6 § 1 of the Convention, which provides as follows: “ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ” A. Arguments of the parties 72. The third applicant pointed out that the article of 16 November 1999, on account of which he had been convicted of defamation, had reproduced in full a petition openly criticising the conviction of the first two applicants for defamation and complicity in defamation by the Paris Criminal Court in a judgment upheld by the Paris Court of Appeal on 13 September 2000. He complained that two out of the three judges on the bench of the Paris Court of Appeal which ruled on his case had also sat on the bench which previously convicted the first two applicants. He emphasised that, according to the judgment given in his case by that court on 21 March 2001, the court had simply referred to its first decision to justify the second, at least as regards the characterisation of the impugned remarks as defamatory. In his submission, under those circumstances the two judges concerned had necessarily had a preconceived idea and thus he had not been heard by an impartial tribunal. This was all the more true as the judgment given in his case by the Paris Court of Appeal had criticised the authors of the petition for “ repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ”, thus indicating, in the applicant ’ s view, that the judges had felt overtly and personally targeted by the impugned article. 73. The Government rejected that argument. In their submission, the indication by the Court of Appeal that the authors of the petition had “ repeat[ed] with approval, out of defiance, all the passages that had been found defamatory by the court ” could not mean that the judges had felt overtly and personally targeted by the impugned article. The attribution of this passage to the two judges in question moreover amounted to speculation: it was in reality an objective conclusion arrived at on reading the petition. The Government further argued that the applicant had not adduced any evidence of bias on the part of those judges. The Government went on to observe that the third applicant ’ s case not only post-dated that of the first two applicants but was also a separate case. The parties were not the same and the case was not the same because it did not concern the same offending acts. In their submission, there was no overlap between the legal questions raised in each case either: one raised the question of the role of fiction in the determination of the offence of defamation, whilst the other concerned the applicant ’ s duty of verification and moderation in his capacity as head of the editorial staff of the newspaper Libération. The Government added that, in the third applicant ’ s case, the judges of the Court of Appeal had not simply referred to the decision taken in the case of the first two applicants, but had taken other factors into account, in particular the fact that the article had been published outside any literary context and without any debate of ideas. They pointed out that, according to the Court ’ s case-law, the simple fact that a judge had already ruled on similar but separate offences could not in itself call the impartiality of that judge into question. B. The Court ’ s assessment 1. Admissibility 74. The Court observes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It moreover considers that no other ground for declaring it inadmissible has been established and therefore declares it admissible. 2. Merits 75. The Court reiterates that impartiality, within the meaning of Article 6 § 1 of the Convention, normally denotes absence of prejudice or bias. There are two tests for assessing whether a tribunal is impartial: the first consists in seeking to determine a particular judge ’ s personal conviction or interest in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect (see, for example, Gautrin and Others v. France, 20 May 1998, § 58, Reports 1998 ‑ III, and Kyprianou v. Cyprus [GC], no. 73797/01, § 118, ECHR 2005 ‑ XIII). 76. In applying the first test, the personal impartiality of a judge must be presumed until there is proof to the contrary (see, among other authorities, Padovani v. Italy, 26 February 1993, § 26, Series A no. 257 ‑ B, and Kyprianou, cited above, § 119). The third applicant argued in this connection that the reasoning in the judgment of the Paris Court of Appeal of 21 March 2001 to the effect that “ [t]he authors of the [petition] had [had] no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks ” had shown that the two judges in question had felt overtly and personally targeted by the offending article. The Court does not share that view. In its opinion, this was simply one of the factors that the Court of Appeal took into account in assessing whether the applicant had acted in good faith, without in fact drawing any conclusion from it. In reality, the third applicant was not convicted because he had published a text that challenged the first two applicants ’ conviction for defamation, or because he had thus shown support for the petitioners ’ “ defiance ”, or because he had criticised the judges in question, but because he had, without a proper preliminary investigation, disseminated a text containing “ particularly serious allegations ” and offensive remarks. Moreover, the Court is unable to find, in the grounds of the judgment of 21 March 2001, the slightest indication that those judges might have felt personally targeted by the offending article. There is thus no evidence to suggest that the two judges in question were influenced by personal prejudice when they passed judgment. 77. As to the second test, when applied to a body sitting as a bench, it means determining whether, quite apart from the personal conduct of any of the members of that body, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular body lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see, for example, Gautrin and Others and Kyprianou, both cited above, § 58 and § 118 respectively). In the present case, the fear of a lack of impartiality stemmed from the fact – moreover a proven one – that two out of the three judges on the bench of the Paris Court of Appeal which upheld the third applicant ’ s conviction for defamation on account of the publication of the impugned petition had previously, in the case of the first two applicants, ruled on the defamatory nature of three of the offending passages from the novel which were cited in the petition. The Court understands that this situation may have aroused doubts in the third applicant ’ s mind as to the impartiality of the “ tribunal ” which heard his case, but considers that such doubts are not objectively justified. 78. The Court notes that, even though they were connected, the facts in the two cases differed and the “ accused ” was not the same: in the first case the question was whether the publisher and author, by publishing certain passages from “ Jean-Marie Le Pen on Trial”, had been guilty of the offence of defamation and of complicity in that offence; in the second, the court had to decide whether, in a journalistic context, the publication director of Libération had committed the same offence by publishing the text of a petition which reproduced those same passages, and whose signatories, repeating them with approval, denied that they were defamatory in spite of the finding to that effect against the publisher and author (see, a fortiori, Craxi v. Italy (dec.), no. 63226/00, 14 June 2001). It is moreover clear that the judgments delivered in the case of the first two applicants did not contain any presupposition as to the guilt of the third applicant (ibid.). 79. Admittedly, in the judgment given on 21 March 2001 in the third applicant ’ s case, the Paris Court of Appeal referred back, in respect of the defamatory nature of the impugned passages, to the judgment that it had given on 13 September 2000 in the case of the first two applicants. However, in the Court ’ s view this does not objectively justify the third applicant ’ s fears as to a lack of impartiality on the part of the judges. The first judgment of the Court of Appeal, dated 13 September 2000, had found to be defamatory certain passages of the book written by the first applicant and published by the second. On this point that judgment had become res judicata. The second judgment of the Court of Appeal, dated 21 March 2001, was bound to apply that authority to this aspect of the dispute, whilst the question of the good or bad faith of the third applicant, who was responsible for the publication of a petition approving that book and criticising the conviction of the first two applicants, remained open and had not been prejudiced by the first judgment. It would therefore be excessive to consider that two judges who sat on the bench which successively delivered the two judgments in question could taint the court ’ s objective impartiality. In reality, as regards the characterisation of the text as defamation, any other judge would have been bound by the res judicata principle, which means that their participation had no influence on the respective part of the second judgment. And as regards the issue of good faith, which was a totally different issue in the two cases even though they were connected, there is no evidence to suggest that the judges were in any way bound by their assessment in the first case (see, mutatis mutandis, Thomann v. Switzerland, 10 June 1996, § 35, Reports 1996 ‑ III). 80. Lastly, the present case is manifestly not comparable to that of San Leonard Band Club v. Malta (no. 77562/01, § 63, ECHR 2004 ‑ IX), where the trial judges had been called upon to decide whether or not they themselves had committed an error of legal interpretation or application in their previous decision, that is to say, to judge themselves and their own ability to apply the law. 81. Consequently, any doubts the third applicant may have had as regards the impartiality of the Court of Appeal when it ruled in the second case cannot be regarded as objectively justified. 82. In conclusion, there has been no violation of Article 6 § 1 of the Convention.
The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the conviction of the first two applicants and of the third. It observed in particular that the sanctions imposed on the author and publisher had not concerned the argument underlying the impugned work but three specific passages from the novel. The convictions had thus been based on relevant and sufficient grounds and the sanctions had not been disproportionate. As to the third applicant, he had overstepped the permissible limits of “provocation” by reproducing the offending passages from the novel in a widely-read national daily newspaper, also taking into consideration the need to protect the reputation of a named person and the rights of others. The fine imposed on him and the damages awarded had been moderate.