LIBERTY OF THE PRESS IN FRANCE

ONE of the greatest French political thinkers has expressed the opinion that in dealing with the press no mean was to be found between the complete absence of effective restraint and the total loss of independence.

En matière de presse [wrote De Tocqueville 1] il n'y a certainement pas de milieu entre la servitude et la licence. Pour recueillir les biens inestimables qu'assure la liberté de la presse, il faut savoir se soumettre aux maux inévitables qu'elle fait naître. Vouloir obtenir les uns en échappant aux autres, c'est se livrer à l'une de ces illusions dont se bercent d'ordinaire les nations malades.

Our own more fortunate experience has not borne out this gloomy view; no one in his senses would suggest that the English press was not sufficiently free, yet the legal limits within which it moves are, for practical purposes, clear and well defined. In France, on the other hand, there have been repeated oscillations between the extremes of freedom and repression, but no sure resting-place has yet been found. During the existing agitation the law has proved wholly powerless to check the floods of libels and outrages which have been poured forth day by day, and have played so large a part in exasperating public feeling and arresting for a time the march of justice. The best framed law may break down when a gust of popular passion invades the jury box and carries all before it, but the failure of the existing law is no new thing, and it is to be seen not so much in individual miscarriages of justice as in the unwillingness of the injured to apply for its protection. No Englishman can read any of the more violent Paris organs for a few days together without asking himself whether there is any libel law in France. Over here, too, the question has often been put of late, whether there is no method of repressing the outrages with which the highest court of the country has been repeatedly assailed. Under these circumstances, it may not be without interest to inquire into the causes which have led to this state of things, more especially as the French law regarding press offences proceeds, at least as to the main lines, on English principles, and as its failure is to some extent attributable to differences in the national temperaments. It would not, perhaps, be safe to base any general 1 De la Démocratie en Amérique, vol. ii. p. 21.

conclusions on the recent prosecution of M. Zola for libelling a court martial, or on the pending proceedings against M. Urbain Gohier for libelling the whole army and navy, for they are too exceptional in their nature. But they have excited great interest in this country, and the proposed inquiry will explain the legal provisions on which they are based.

Three theories as to the relation of the law and the press have found some measure of support in France. The first maintains that newspapers have no power whatever to do mischief, and that therefore they should be wholly free from legal restraints and liabilities. This theory, which is opposed to the common knowledge of mankind and has probably never found any civilised Government to act upon it, may be dismissed at once. The second theory maintains that newspapers have such exceptional powers of mischief, and are so likely to make use of them, that special laws should be passed for their restraint. This theory has gained the upper hand at one time or another during almost every régime which has ever governed France, and perhaps was most thoroughly applied during the Second Empire. No newspaper could then be founded until permission had been obtained and heavy security given to meet possible claims and penalties. Every article had to be signed by the writer, and the paper was liable to be suspended or suppressed, not only by judicial sentence, but also by administrative action. All these provisions have been swept away, and their only surviving influence is to be seen in the violence of reaction towards unrestrained licence which they provoked. The third theory— that writers in newspapers should neither enjoy greater impunity nor incur greater liabilities than other people-is the theory of the English law, and has been followed in the Law of 1881 by which the French press is at present governed.

The liberty of the press [Blackstone wrote ] consists in laying no previous restraints upon publications, and not in freedom from censure of criminal matter when published. Every freeman has an undoubted right to lay what statements he pleases before the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

To speak more precisely, journalists, like other people, if they publish treasonable or seditious or blasphemous or obscene or defamatory matter, or matter which amounts to contempt of court, are liable to be tried before a jury, except in the last case, when they may be fined or imprisoned by the court itself. In the case of defamatory libels-libels, that is to say, reflecting on the character of individuals—there is also the liability to a civil action for damages. In practice, the respectable journalist need only be on his guard against libels and contempt of court. Recognising the risk which he runs of offending unwittingly, Parliament has of late years Desjardins, De la Liberté Politique dans l'Etat Moderne, Paris 1894, p. 116. 3 Commentaries, vol. iv. p. 151.

accorded him some slight protection not extended to other people; for instance, he cannot be prosecuted criminally until the permission of a Judge at Chambers has first been obtained. So far as we have a special Press Law, it is a law of privilege for journalists, though the privilege is still so limited as to afford a very inadequate remedy against blackmailing and abusive actions. On the whole, however, it can scarcely be doubted that the very stringency of our libel laws has largely contributed to the high character of our press, just as the inadequacy of the French law has been productive of an opposite result.

The French attempt to adopt a similar régime is to be found in the Loi sur la Presse du 29 Juillet 1881, which, with the amending laws, may be said with sufficient accuracy to constitute a codified law of criminal libel. The title Loi sur la Presse' is, however, a misnomer, seeing that it deals with criminal publications, however expressed, whether by word of mouth, or writing, or printing. There are, of course, numerous regulations applying especially to the newspaper press, as in our own Newspaper Libel and Registration Act, but, on the whole, the law of 1881 is rather what English lawyers would understand as a Law of Libel and Slander than a Press Law.

Publications which are criminal are defined in Chapter IV., 'Des crimes et délits commis par la voie de la presse ou par tout autre moyen de publication.' The first section, 'Provocation aux crimes et délits,' art. 23-25, as amended by the law of 12-13 December 1893, includes incitements to crime which actually take effect, and incitements to certain crimes, such as those affecting the external or internal security of the State, whether they take effect or not; also apology for murder, pillage, or arson, and incitements to mutiny. The second section, Délits contre la chose publique,' comprises insults ('offenses') to the President of the Republic, the publication of false news in bad faith which has led to riot ('troublé la paix publique'), and 'outrages aux bonnes mours' corresponding to our obscene libel. Section 4 deals with public insults against foreign sovereigns and ambassadors. It would be easy, if necessary, to show that the offences defined in these sections have their counterpart in our own criminal law, by which they are even more severely punished. Attention may, however, be confined exclusively to the provisions of section 3, Des délits contre les personnes,' which corresponds to our own law of slander and defamatory libel. Our distinction between verbal and written defamatory statements, libel and slander, is unknown to French law, which classifies offences of this kind according as they impute specific facts of a discreditable nature, or are confined to mere general disparagement. Diffamation,' which involves the allegation of some specific fact, is defined as

toute allégation ou imputation d'un fait qui porte atteinte à l'honneur ou à la considération de la personne ou du corps auquel le fait est imputé.

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"Injure,' which includes insult and general disparagement, is defined as

toute expression outrageante, terme de mépris ou invective qui ne renferme l'imputation d'aucun fait.

Diffamation' and 'injure' against the dead are also punishable, but only, art. 34, when directed against the reputation of the living— dans les cas où les auteurs de ces diffamations ou injures auraient eu l'intention de porter atteinte à l'honneur ou à la considération des héritiers vivants.

The punishment for 'diffamation' and 'injure' is by fine or imprisonment, or both; but the injured parties may intervene as parties civiles, and in the event of a conviction the court will award them damages under art. 1382 of the Code Civil.

Tout fait quelconque de l'homme qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé à le réparer.

Damages under this article may also be recovered in a civil action without having recourse to criminal proceedings under the law of 1881; but the civil action is not open to officials who have been attacked in respect of their public duties. In England, the liability to an action in which the jury is empowered to award exemplary damages forms, perhaps, the most effective restraint on the license of the` press; but in France it is far otherwise. Not only is there no jury to award them, but pecuniary damages, in French eyes, afford no solace for wounded honour; it is even, we are told, a point d'honneur with many to ask for nominal damages or none at all, at least where no special pecuniary damage can be shown. Nothing in English manners has been more adversely criticised in France than the old action of crim. con. and the damages now awarded in the Divorce Court, which, by the way, are in very many cases settled on the guilty wife. Respectable as is the French point of view, it fails to see that our law, if it cannot effect its declared purposes of compensating injured honour, has at least found the most effective means of punishing the wrong-doer, and deterring others from emulating him.

Even if damages are asked for, the award made by the judges will usually be insignificant, while the penal sentence will only amount to a few days' imprisonment and a fine of a few francs, which often will not fall on the really guilty parties.

Perhaps the chief defect of the existing law is the large measure of impunity it extends to the newspaper press. The general principle of our own law is that everyone concerned in the publication of a libel is liable; and, that there may be some responsible person to proceed against, the proprietors of every newspaper must be registered and the printers must put their names on every issue of the paper. In France, the law of 1881, art. 42, puts the primary responsibility

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for all that appears in a newspaper on the gérant or registered manager, and, in default of the gérant, successively on the writer, the printer, and the vendor. When a gérant is forthcoming, the writer, the editors, and the proprietors can only be proceeded against as accomplices if they can be shown to have taken any active part in the publication; but except in the case of a writer signing his name to an article, like M. Zola, this responsibility is largely illusory, owing to the difficulties of proof. In practice, the proprietors of the paper, for whose profit it is conducted and upon whom the heaviest responsibility ought to fall, escape all criminal liability, and can only be made liable for damages if the prosecutor can find and sue them, a matter in which the law affords him no assistance. Many papers keep a tame gérant, described as a procureur à prison, whose one duty it is to be fined and sent to prison. M. Cruppi, in a work to be referred to later, describes the good-humour with which he undertakes the discharge of this duty, while the responsible editor, the writer, if the article be unsigned, and the proprietor stand about unconcernedly, and the haggard and anxious air of the prosecutor marks him out unmistakably as the real criminal. These provisions, adopted by a Legislature in which journalists had such powerful influence, are rightly described by M. Cruppi as une ruse destinée à couvrir les vraies responsabilités,' and constitute the greatest blot on the legislation of 1881.

The law also makes most important and characteristic distinctions, according as the offence is committed against public bodies or functionaries in relation to their duties or against private persons. Offences against public authorities are more heavily punished, are tried by a jury en cours d'assises instead of before judges only en police correctionnelle, and only in such cases is truth of the libel a good defence.

The defects in the law relating to the repression of libels on private persons may first be dealt with. It cannot be said that the trial of such libels by the judges of police correctionnelle without a jury excites any widespread dissatisfaction, nor is there likely to be any demand for a change until the verdict of a French jury carries greater weight than at present. A far more serious defect is to be found in the provision that truth is no legal answer to an attack on private character. This is doubly unfair, first to the writer,

1 Art. 44.

La Cour d'Assises. Paris, 1898.

The public bodies enumerated in art. 30 are les cours, les tribunaux, les armées de terre et de mer, les corps constitués et les administrations publiques.' The proceedings against MM. Zola and Gohier have been taken under this article.

The persons enumerated in art. 31 are un ou plusieurs membres du ministère, un ou plusieurs membres de l'une ou de l'autre chambre, un fonctionnaire public, un dépositaire ou agent de l'autorité publique, un ministre de l'un des cultes salariés par l'Etat, un citoyen chargé d'un service ou d'un mandat public, temporaire ou permanent, un juré ou un témoin à raison de sa déposition.'