France

[FR] Infiltration and concealed camera methods do not exclude good faith

IRIS 2014-10:1/16

Amélie Blocman

Légipresse

In a judgment delivered on 16 October 2014, the Regional Court of Paris has defined the conditions under which journalists prosecuted for defamation following a concealed-camera report may claim that they acted in good faith, thereby escaping prosecution. Associations responsible for the management of a parish and a school and their representatives, were suing the publication director of a television channel, a number of journalists, and the manager of the production company of the ‘Les Infiltrés’ programme for defamation following the broadcast of a report (followed by a pre-recorded studio debate), entitled “A l’extrême droite du Père” (on the extreme right hand of the Father). The report had been produced using the infiltration method, which enabled a journalist to infiltrate a small extreme right-wing group presented as being extremely violent and racist in a parish, in a school, and to film various people using a concealed camera, as well as applying certain blurring and voice-distortion techniques prior to broadcasting. The report claimed that the Roman Catholic associations and the person in charge of them had links with this small group and with the school, which was qualified as a “nest of Fascists”, backed by various elements and examples given in the report. It was also claimed that the school’s teaching was “overtly anti-Semitic” and even revisionist. The court found that all the utterances at issue were defamatory with regard to the parish, the school, and its manager, who was shown un-blurred in the broadcast and was wrongly presented as the founder of the school, whereas he is in fact chairman of the association which manages the school.

Regarding the proof of the good faith claimed by the journalists being prosecuted, the civil parties’ main complaints were that the infiltration had been unfair and that the broadcast was based on set-ups, manipulations and lies. The court nevertheless stated that in defamation cases, freedom of proof might permit the production of documents obtained unfairly. Thus, although by their nature they involved a degree of dissimulation, the use of infiltration and concealed camera methods did not intrinsically exclude good faith; they might be permissible, subject to certain conditions. Firstly, they must be a necessary means of revealing legitimate information to the public on an item of general interest that could not have been discovered otherwise. Next, the principle of proportionality must be respected, as well as various precautions involved in ensuring the anonymity of certain people and the absence of any deformation of the sequences broadcast.

In the case at issue, the court found that it was legitimate to inform the public of the existence of violent and racist political groups, and of the links that may exist between such a group, the clergy in a parish, and a school. The elements of the investigation were mainly the result of sequences broadcast in the report itself (extremely violent, racist statements), and were corroborated by others included in the uncut footage. While it was true that some of the passages at issue contained a number of inaccuracies or approximations, they were deemed to have little effect on the impact of the utterances, and to be non-determining.

Furthermore, the principle of hearing both sides of an argument had been observed, with the un-blurred interview of the school’s manager and the priest who was its head teacher, whose utterances were broadcast in the report, and the presence of another priest among the participants in the debate in the studio that followed the broadcast. A degree of prudence was evident in that the final version of the report did not include a number of particularly shocking statements that were present in the uncut footage.

Consequently, and in view of the general interest of the subject and with all these elements taken together, the court found that the accused had sufficient factual grounds for making and broadcasting the disputed utterances. The court allowed them the benefit of having acted in good faith and the prosecution was dropped.