News you can use: avoid defaming a Frenchman

by Vault Law Editors | November 16, 2007

There is a going on in France. Last year, journalist Charles Enderlin and government-owned television broadcaster France 2 won a libel suit against media watchdog Philippe Karsenty, who had accused the plaintiffs of fraudulent reporting.

Obviously, this is not the forum for rehashing any of the talking points on either side of Israeli-Palestinian affairs. But it can be stipulated that the case hinges on whether France 2 and Enderlin accurately reported the tragic death of a 12 year old boy at the hands of the IDF, or were dupes for a sinister piece of agitprop. There isn’t any way to reconcile the positions of Enderlin and Karsenty; they are mutually exclusive. The case recalls the Dreyfus Affair, with cameos by Rosemary Woods and Dan Rather’s fugazi memos.

I first heard of Mohammed al-Dura from an Egyptian taxi driver, when I asked about the picture wedged in his sun visor. That now-iconic image is a still shot from the video footage now at issue in the Karsenty case. That cab ride was during the fall of 2000, as the Second Intifada was just taking off. A couple of years later, I read the James Fallows investigative piece in the Atlantic, and figured that was probably the last word. So it was surprising—in light of the case made by Fallows—to find that Karsenty was being sued by Enderlin and France 2 and not the other way around.

My surprise stemmed from ignorance of French defamation law. Basically, it is easy to win a libel suit in France. About all the plaintiff needs to do is to show that he was defamed (“any allegation or imputation of an act affecting the honor or reputation”). Truth is a defense, but there is a catch: the burden of proof falls on the defendant. It's up to the defendant to prove to a panel of judges that the statement was true. (Good primer on French defamation law here, beginning on p.13)

In the US, the burden of proof for defamation of public figures such as Enderlin is entirely on the plaintiff, who must prove
the defendant was deliberately lying or showed "reckless disregard" for the truth. By contrast, French law places the burden of proof in defending against a libel suit extraordinarily high. If Enderlin filed a similar suit in a US Court—against Fallows, for instance—not only would he lose, almost certainly the case would be promptly dismissed for failure to state a cause of action, and his attorney might well be sanctioned.

[Anyway, a technical aspect of French law is hardly the most ‘fascinating’
tidbit of the case. My nominee: Deus ex Jacques? I highly recommend reading further.]

-posted by brian