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France: High Court Rejects Complaint Against Insulting Caricature of Politician Marine Le Pen

(Nov. 19, 2019) On October 25, 2019, the Cour de cassation (France’s highest court for matters of civil and criminal law) ruled that a caricature of Marine Le Pen, a member of the French Parliament and leader of the far-right party National Rally (formerly National Front), constituted a legal exercise of free speech under French law.

The caricature, which was first published in the satirical weekly Charlie Hebdo and was shown on a television show a few days later, depicts a mock election poster featuring a pile of excrement in front of a blue, white, and red backdrop with the words, “Le Pen, the candidate who is like you.” Both the initial publication and the subsequent display on the television show occurred in January 2012, a few months before a presidential election in which she was running. While Le Pen did not sue Charlie Hebdo, she did sue the television presenter who displayed the illustration on his show, which had a much larger audience than the weekly magazine. Her suit alleged that showing the caricature on national television was a violation of her dignity and fell outside the bounds of freedom of speech.

While freedom of speech is considered a constitutionally protected “essential freedom” in France, French law allows more limits to free speech than US law generally does. Some of those limits are set out in the Law of 29 July 1881 on Freedom of the Press, which is the principal legislative framework of freedom of speech in France. Le Pen’s claims rested in part on articles 29 and 33 of this Law, which make it illegal to insult a person. Insults (injures in French), in this context, are defined as “any offensive expression, term of contempt, or invective that does not contain the imputation of any fact” (art. 29), and is punishable by a fine (art. 33).

Le Pen’s claims were dismissed by the trial and appeals courts in 2014 and 2015.  She then petitioned the Cour de cassation, which held in 2016 that displaying the caricature on a national television show for comedic effect may have been a violation of human dignity outside “the acceptable bounds of freedom of expression.” The Cour de cassation sent the case back to the Court of Appeals for a new trial, but the Court of Appeals again found that Le Pen’s claims were unfounded. This led to yet another petition to the Cour de cassation and the decision of October 25, 2019. This time, the Cour de cassation heard the case in its plenary formation, whereas only one chamber had heard the case in 2016.

In contrast to its 2016 decision, the Cour de cassation’s recent decision found that human dignity “could not be construed as an autonomous foundation for the restriction of free expression.” Rather, a publication may be incriminated only “if it constitutes an abuse of the exercise of the right to free expression.” In the case at hand, the Court concluded that the circumstances—in which the illustration was first published in a satirical newspaper reflecting its opinion on Le Pen’s political positions, and was then shown in a polemical television show alongside other illustrations mocking each of the presidential candidates of the time—justified the Court of Appeals’ finding that the television show host was within his rights to free expression.

This latest decision by the Cour de cassation is the final ruling on this matter, putting an end to the case after seven years of litigation.