NEWS

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18-06-2018

 

Freedom of expression cannot justify a manifestly false comment on the Internet

 

The use of the Internet by a professional as a showcase for his activity guarantees him certain publicity and visibility. However, professionals do not have a monopoly on advertising concerning their activities since Internet users can also, thanks to various platforms (TripAdvisor, lafourchette, PagesJaunes, etc.), issue an opinion on the quality offered by the seller or service provider. Services. Internet users can thus promote the development of a company or, on the contrary, damage its reputation.

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In the latter case, the professional can legitimately wonder under what conditions he can impose the withdrawal of a negative comment and, if necessary, engage the responsibility of its author. 

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Remember that freedom of expression, inherent in any democratic society, is a right to which advanced legal systems are particularly attached. French law enshrines it in articles 10 and 11 of the Declaration of the Rights of Man and of the Citizen of 1789, following the example of international law which, under the impetus of the Council of Europe, lists it among the rights and freedoms guaranteed by the European Convention on Human Rights.

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Therefore, a comment or an opinion published by an Internet user cannot in itself constitute a fault. The Dijon Court of Appeal, in a judgment of March 20, 2018, confirms this principle by subjecting it to a double limit.

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A user had posted on the yellow pages site, about the Loiseau des Ducs restaurant, the following comment : " Overrated, overall assessment: very overrated restaurant, in pageantry and very little on the plate. The best-stocked plate is that of the bill. What he liked: the decoration, what he didn't like: the honeyed side of the staff ”. However, on the day of publication of this notice, the Internet user had not been able to benefit from the services of the criticized restaurant since it was not yet open. After removing his comment, he re-posted it a few days later, on the day the restaurant opened, in identical terms, and then edited it several times, reiterating his disparaging remarks. He had also acknowledged in letters of apology that he had never frequented the restaurant in question.

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The Court of Appeal considered that " if the critical commentary on services or services published on a website does not in itself constitute a fault, (…), it becomes faulty when its author has not benefited from the services or services criticized and that it proceeds from an intention to harm " before asserting " That these comments , unflattering for an establishment bearing the prestigious name of Loiseau, were intended to dissuade potential customers from frequenting it, and they constitute manifest denigration likely to engage the tort liability of their author ”. In particular, it condemned the Internet user to pay 4,000 euros in damages to the company operating the restaurant.

It should be noted that the hypothesis of defamation was not addressed here, for lack of allegation or imputation of a fact which undermines the honor or the consideration of the legal person operating the restaurant, within the meaning of the article 29 of the law of July 29, 1881.

 

 

 

The freedom to criticize the service provided by a professional is therefore not called into question. Nevertheless, the author of a comment must take care to make objective comments and not be motivated by an intention to harm, if he wishes to avoid legal proceedings against him and a probable conviction. The judgment of the Court of Appeal of Dijon thus adds an additional stone to the praetorian construction of the abuse of freedom of expression. Without enclosing it in a liberticidal straitjacket, moreover contrary to French and European principles, case law has in fact developed the theory of abuse of freedom of expression (which is a variant of abuse of rights) and denigration. The denigration grievance allows economic operators to engage the responsibility of the author of an unfavorable opinion relating to the products and services they market when the comments made exceed the limits of freedom of expression. Thus, the Court of Cassation considers that " outside the legally provided restriction, freedom of expression is a right the exercise of which, except denigration of products or services, cannot be challenged on the basis of article 1382 of the civil code ” (Court of Cassation, 1st civil chamber, July 2, 2014, n°13-16730).

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Unlike defamation, it is irrelevant whether the alleged facts in dispute are accurate or public knowledge. The Court of Cassation considers that the disclosure of information likely to discredit a competitor constitutes disparagement, regardless of whether it is accurate (Court of Cassation, Commercial Chamber, September 24, 2013, n°12- 19790). It is therefore not the disclosure of the truth which is prohibited but the circumstances which accompany it. In the case that gave rise to the judgment under comment, it was impossible for the Internet user to have been able to disclose accurate and sincere information since he had admitted never having visited the restaurant. One can therefore wonder what the solution would have been if the author of the condemned remarks had published them on the Internet after having actually benefited from the restaurant's services. Considering the altogether acerbic wording of the comment and the ground raised by the Court of Appeal based on the intention to harm, one can suppose that the decision would have been similar.

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Furthermore, the professional targeted by the negative comments could additionally invoke acts of unfair competition against their author and be awarded damages if the latter turns out to be a competitor. Note, however, that disparagement does not imply a competitive relationship and does not necessarily fall within the scope of acts of unfair competition. The diversion of customers or the search for a commercial advantage is therefore not a condition for the qualification of disparagement. This solution is fortunate, the objective of the denigrator not necessarily being to monopolize the customers of the company whose services and products are denigrated but to tarnish the image maintained by an economic operator, which may be the result of many years of development.

 

CarolCOUSON-WARLOP, associate lawyer, Cabinet ARTLEX Nantes

John ORIEUX, trainee lawyer, Cabinet ARTLEX Nantes

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Court of Appeal of Dijon, March 20, 2018, RG n°15/02004, commentary, opinion, case law, analysis, Internet, Internet user, freedom of expression, disparagement, competition, unfair, defamation, online opinion, economic operator, intellectual property law, internet law