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“The law of 1881 remains the basis of the freedom of the press”, affirms Me Leclerc – France


What does this text represent to you?

I was Liberation’s lawyer for 30 or 40 years, I was the lawyer for publishing houses and I had cases for writers… It was something important to me. It is an admirable text which has been long awaited. Article 11 of the Declaration of the Rights of Man and of the Citizen (DDHC) of 1789 provided that the press was free except in the case of abuses determined by law. At the start of the Third Republic, it was decided to specify the abuses. The 1881 law is the one that defines the limits of freedom of the press. The principle is absolute freedom, then there were some limits. This text is the description of the limits and the means of procedure which were necessary to put an end to these abuses. The parliamentary debate during the drafting of the law was very important. It is in the official journal, it’s fascinating, with the first interventions of Clemenceau who, at the time, is obviously rather left, very libertarian. Of course, today, there are principles related to press freedom which are dictated by the European Court of Human Rights, but there is no contradiction. And there have been slippages, we have modified or added texts, as with the villainous laws of 1894 in the face of anarchist threats, but, on the whole, the law of 1881 has remained the basis of freedom of the press.

Recently, the Court of Cassation seems to restrict the field of freedom of the press with two decisions on the secrecy of the investigation and on personal data. Is this worrying?

Of course, there are decisions, but the fundamental principles remain the same. They are regulated by the judgments of the European Court of Human Rights which applies the provisions of Article 10 of the ECHR which are principles generally adopted by the French Court of Cassation. Today, the law of 1881 is the narrow framework of the procedure but which must be informed by the principles of the ECHR. Of course, these stops are a problem but it will not last. There are advances and returns, I am thinking of the secret of instruction. Today, violations of this secrecy are permanent. The European Court of Human Rights has said that freedom of information takes precedence over everything and that restrictions must be absolutely necessary, essential for democracy. Historically, the interpretations of the Court of Cassation have been restrictive. They are now much wider. Instead of being alarmed, we must cling to principles. All the case law on press freedom is built on the interpretation of the 1881 law by the Court of Cassation. In the beginning, the journalist had to prove the truth when he imputed something. At the end of the 19th century, the Court of Cassation reduced this by saying: “It is enough that the journalist is in good faith”. Then we determined the criteria of good faith. They have widened over time. It is evident that the Cour de Cassation’s conception of truth has broadened. Narrow at the start, it now simply asks that there be a serious factual basis and that can be conceived in a fairly broad way.

With the internet, part of the expression seems to escape the regime of the 1881 law, should we be worried?

The law of 1881 was made within the framework of a diffusion proper to the means of the time. In 1789, the text covered all known means of dissemination. We said: spoken, written, printed. Then, in 1982, we made laws on the audiovisual sector. Today, the field of information is extremely complex and poses new problems. The principle is that the law of 1881 aims at the public distribution of things. When there is a director of publication, it is easy to identify a person in charge. With social networks, it’s much more complicated. We will have to consider a legislative change. We must invent what would be the new law that would punish abuses of freedom of expression. The general problem posed by the universal extension of individual expressions which escape the rule calls for finding, within the narrow framework of the texts which define the fundamental principles of the rule of law, the means to frame them. The law of 1881, these are the means of enforcing the principles of the DDHC of 1789: expression is completely free except to answer for abuses determined by law. It is the same principle for Article 10 of the ECHR. We must continue to apply the general principles. But I am worried about the new modes of communication that make law enforcement complicated.

Without freedom of the press, no democracy?

The 1881 law is an absolute foundation. The European Court of Human Rights has had an extraordinary formula since the mid-1970s. It says that freedom of information is not made only for information which has no consequences but also for information which offend, shock or worry the State or a number of people. This is the spirit of openness, tolerance and pluralism without which there can be no democratic society. It is therefore a foundation of democratic society and we can see it perfectly, today, in Morocco, in Algeria, where journalists are put in prison and I am not talking about Russia or China.

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