ECHR / The deletion of a passage from a lawyer's conclusions deemed defamatory by the Monaco Court of Appeal does not infringe freedom of expression

ECHR, Case SARL Gator v. Monaco, 11 May 2023, Req. no. 18287/18 (French) (non-violation of Article 10 - Freedom of expression)

SUMMARY

In support of its action, the applicant company argued that the Monaco Court of Appeal's deletion of a passage from its written submissions, which was found to be defamatory of the opposing party, had infringed its right to freedom of expression protected by Article 10 of the European Convention on Human Rights.

The European Court of Human Rights (ECHR) found that there had been no violation of Article 10 of the Convention, holding that the suppression of the impugned comments (provided for by Article 34 of Law no. 1.299 of 15 July 2005 on freedom of public expression) was not disproportionate to the legitimate aim pursued, as the interference with the right to freedom of expression could reasonably be regarded as necessary in a democratic society to protect the reputation of others.

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IN DETAIL

The facts and the Monegasque proceedings

The applicant company, which retailed clothing and accessories, had entered into a management lease (contrat de gérance libre) for a business in Monaco with a Société Civile Professionnelle ("SCP", civil professional partnership).

After the SCP, the lessor, noted that the applicant company was no longer regularly paying the rent, followed by payment orders, the applicant company objected to the continuation of the contractual relationship, citing a legal obstacle, and brought proceedings against the SCP before the Court of First Instance in Monaco to have the contract declared null and void.

The legal obstacle raised by the applicant company was that the person granting the management lease had to be a trader and have operated the business, which it considered was not the case with the SCP, as a non-trading company could not carry on a commercial activity.

The Court of First Instance dismissed all the applicant company's claims, refusing to declare the management lease contract null and void on the grounds that Monegasque law required neither that the contract be concluded between two merchants nor that the lessor have operated the business.

On appeal, the appellant company argued that a business, as a commercial institution, required its owner to be a trader and to operate it, and that the SCP, which was not a trader, could not lease a business that it did not itself have the right to operate.

Among other things, the applicant company relied on the SCP's articles of association, pointing out firstly that they made no mention of any commercial activity and secondly that the joint managing partner practised as a chartered accountant, which was incompatible with the performance of any commercial act under Monegasque law.

The creation of the SCP was presented as having had a fraudulent dimension intended, during a future and hypothetical transaction involving the sale of shares, to conceal the fact that the business was not actually being run or that it was prohibited from trading.

The SCP requested that the following passage be deleted as defamatory:"In other words, the company is the ideal instrument for transferring the business without the purchaser being able to operate it, or even for fraudulently transferring it to a purchaser who is banned from trading (see Article 8, c and d of Law no. 546 of 26 June 1951)".

It also sought to reserve its civil action in respect of the defamatory writings.

The Court of Appeal upheld the judgment of first instance, considering that no legal provision required the lessor of a business to be a trader, nor reserved the letting of businesses to traders, and ordered the deletion of the disputed passage on the basis of Articles 21, paragraph 1 and 34, paragraph 2 of Law no. 1.299 of 15 July 2005 on freedom of public expression, considering that "the comments made portray the SCP L.I., by name, as the 'dream instrument' of fraudulent acts likely to be committed by its manager and majority shareholder, and necessarily harm its reputation".

On the other hand, it dismissed the SCP's application to reserve its civil action for defamation, considering "that although the usefulness of these remarks and their appropriateness remain to be demonstrated, it cannot be claimed that they are irrelevant to the case".

The appellant company lodged an appeal for judicial review, which was dismissed by the Supreme Court (Cour de révision) on the following grounds:"(...) whereas the Court of Appeal referred to Article 34 para. 2 of Law no. 1. 299, which allows judges ruling on the merits to order the deletion of insulting, offensive or defamatory statements relating to the facts of the case before them; that, having identified the constituent elements of the offence provided for in the aforementioned article, it verified that the disputed statements were sufficiently related to the case before it, and made it clear, by the brevity of the passage deleted - the four disputed lines reported - that the sanction was proportionate to the aim of protecting [SCP L. I.] was entitled to; it therefore lawfully justified its decision; (...)".

The appeal before the ECHR

The applicant company's arguments

The applicant company argued in substance that the deletion of the disputed passage constituted interference with its right to freedom of expression, which, although it pursued the legitimate aim of protecting the reputation and rights of others under Article 10(2) of the Convention, was neither foreseeable (because of the lack of objective criteria used by the domestic courts in interpreting and applying Article 34 of Law no. 1. 299 of 15 July 2005, leading to a disparity in the case-law solutions for similar remarks), nor necessary in a democratic society (emphasising the non-excessive and not very virulent nature of the remarks, which were more of a supposition than an assertion and had a sufficient factual basis, the absence of persons referred to by name in the deleted passage and the absence of any direct imputation of a criminal offence).

It also pointed out the limited impact of the alleged damage to its reputation in terms of publicity, since the judicial writings and public hearings in the case in point had not been the subject of any particular publicity or media interest.

Lastly, the applicant company considered that it had been prejudiced by the fact that its legal arguments had been partially cut down, and alleged that the deletion of the impugned comments, even if it appeared to be a minor sanction, had an unacceptable dissuasive effect on freedom of expression, given that they were the writings of a lawyer called upon to ensure the effective defence of his client.

The respondent Government's arguments

The respondent Government reiterated the lawfulness of the interference and argued that the foreseeability of the legislative provision was not called into question by the fact that the deletion of similar remarks had not been systematically ordered, the judicial assessment being by definition liable to vary from case to case, depending on the exact content of the remarks in question and the context.

As for the requirement of necessity in a democratic society, the Government argued that the Court allowed limits to lawyers' freedom of expression. In the present case, in his view, the wording was particularly serious because it amounted to an assertion that the SCP encouraged the commission of offences against Monegasque law and went beyond what was permitted by the exercise of the rights of the defence, and was not based on a sufficient factual foundation.

The respondent described the deletion as a minimal and symbolic measure.

Lastly, with regard to publicity, the Government considered the deletion necessary, as the comments were likely to "leave the courtroom" with significant repercussions for the reputation of the SCP, relying on the specific characteristics of the Principality in terms of size and number of inhabitants.

The ECHR's assessment

The Court held that the decision to delete the disputed passage from the appeal submissions had the effect of partially depriving a party to the proceedings of its argument, which therefore constituted interference by the domestic authorities with the applicant company's freedom of expression, as embodied in the legal writings of its counsel, a point not disputed by the Government.

Nevertheless, such interference did not infringe Article 10 of the Convention if it was:

• "prescribed by law" (legality),
• directed towards one or more legitimate aims within the meaning of paragraph 2, and
• necessary in a democratic society" to achieve them.

The Court's analysis focused on the question of lawfulness and whether the interference was "necessary in a democratic society", since the parties agreed that the purpose of deleting the impugned comments was to protect the reputation or rights of others (in this case the SCP), and that it was therefore directed towards a legitimate aim.

— The interference with the exercise of the applicant company's right to freedom of expression was "prescribed by law" within the meaning of Article 10(2) of the Convention.

In the Court's view, the key question with regard to legality was whether, when the applicant company filed its writ through its lawyer, it knew or ought to have known that its writings were liable to be suppressed by the Court of Appeal on the basis of Article 34 of Law no. 1.299 of 15 July 2005 on freedom of public expression.

The Court answered in the affirmative. Basing itself on articles 21 and 34 of Law no. 1.299, it considered that the applicant company, represented by a lawyer, could reasonably foresee that any comments made in its legal writings and considered defamatory were likely to be subject to a "bâtonnement" by the judges hearing the case. This was all the more so because, at the material time, the Monegasque courts had already applied the said provisions, punishing, among other things, comments imputing to the opposing party a ""great propensity [...] to commit fraud".

— The interference was not disproportionate to the legitimate aim pursued and could reasonably be regarded as "necessary in a democratic society" to protect the reputation of others within the meaning of Article 10(2) of the Convention.

The Court began by reiterating what it had already held in cases concerning remarks made by lawyers representing their clients in the courtroom, namely that, while "equality of arms" and other considerations of fairness militate in favour of a free, even vigorous, exchange of views between the parties, lawyers may not make remarks of a serious nature that go beyond the bounds of permissible comment without a solid factual basis. In so doing, the Court noted that the limits of permissible criticism of civil servants may, in some cases, be wider than for private individuals.

In the Court's view, the question here was whether, in their general context, the remarks could be regarded as misleading or as a gratuitous attack and whether the expressions used had a sufficiently close link with the facts of the case.

The Court began by noting that the disputed remarks concerned a purely private dispute involving another private company and that the State therefore had a greater margin of appreciation than if they had been made in the context of a debate of general interest,

The Court then explained that the judge is the guardian of the balance between the judicial immunity enjoyed by lawyers and their clients in respect of written or oral pleadings (intended to prevent the risk of intimidation of the parties or their lawyers who might censor themselves in the expression of their views for fear of exposing themselves to criminal proceedings) and the non-absolute nature of the freedom of speech or writing brought before the courts.

After noting that under Law no. 1.299 of 15 July 2005 on freedom of public expression, the Monaco Court of Appeal had a duty to monitor judicial expression, with the power to suppress it if it considered it defamatory, insulting, injurious or invasive of privacy, it upheld the Court of Appeal's assessment that:

• was reasonably able to consider that the disputed comments, although veiled, exceeded the limit of admissible comment, since in the absence of a solid factual basis, and therefore of elements likely to prove the veracity of the barely concealed accusations, they could perfectly well be considered defamatory;
• explicitly stated that the impugned comments were not unrelated to the cause of action, namely the nullity of the lease management contract, and that, as a result, the claimant was barred from bringing any action for damages in defamation, in accordance with Article 34 of Law no. 1.299 of 15 July 2005.

The Court pointed out that the nature and severity of the penalties (proportionality) are also factors to be taken into consideration, noting in this case that the deletion of the defamatory statements was the lightest penalty provided for under Article 34 of Law no. 1.299 of 15 July 2005 (an order to pay damages is also provided for).

Finally, the Court noted that the substance of the judicial writings had in no way been weakened, as the deleted passage represented only four lines out of a total of nine pages of submissions.