thestructureofthewrongofdefamaonincomparave historical ... ·...
TRANSCRIPT
The structure of the wrong of defama2on in compara2ve historical perspec2ve: England and France Mathilde Groppo ([email protected])
• Compara8ve law involves a historical element, which has a strong explanatory poten8al and can account for the differences and commonali8es between legal ins8tu8ons
• A historical retrospec8ve of the development of the law of defama8on in England and France highlights 3 prominent features in their structures
How can these structural features be accounted for? Do they illustrate a conscious choice exemplary of a fundamental difference between the two jurisdic8ons; are they the by-‐product of path dependence; or could they simply be the result of a mistake?
An analysis of the structures of the wrongs of defama8on in England and France highlights considerable differences in their structures. These differences notwithstanding, an historical dimension in the comparison sets forth various common traits.
The concern to recognise the specificity of the wrong
Although the rules do not fall within the same area of law, the wrong of defama8on jus8fies a specific framework for the interests it protects in both jurisdic8ons • Existence of similar dynamics: the strive towards the exclusion of the broader set of rules
(tort of negligence; art. 1382) in favour of the more refined one (tort of defama8on; law of 29 July 1881)
• Shared casuis8c approach: allows for beVer treatment of various types of fault, and provides remedies appropriate to the various financial, social and psychological consequences of a wrong
Introductory points Research ques2on Main argument
Tor2ous or criminal regula2on
The situa8on is exemplary of path dependence: different solu8ons are found to a similar problem because each system is locked into various ‘set[s] of concepts, procedures and ideas from the past’
England France
Feature 1: the libel/slander dis2nc2on
Feature 2: the nature of the regula2on
Feature 3: the posi2on of the wrong on the na2onal legal map
• Contrary to French law, English law draws a dis8nc8on between libel and slander based on the permanent or transient character of
the statement • This appears to be a product of a historical accident stemming from dubious premises The common core of the English and French laws of defama2on derived from their shared conceptual basis, Roman law A similar incorrect focus on means of commiGng the wrong • England: problema8c interpreta8on of King v Lake statement as establishing two different torts rather than one single tort with aggrava8ng
factors • France: existence of some incorrect doctrinal analysis of the law on ‘the Press’ as a reference to a means of commi]ng the wrong (namely
through the media) rather than as a medium for freedom of expression and of opinion
Roman law English law French law Protected interests • Corpus
• Fama • Dignitas
• Physical integrity • Reputa8on
• Personne/biens • Honneur
Manner of commiGng the wrong • Re • Verbis • Li8eris
• Gestures • Words – oral • Words – wriVen
• Injures réelles • Injures verbales • Injures par écrit
‘Overtly poli8cal’ character of criminal prosecu8ons
Historical developments fostered a common understanding of the
criminal offence as an instrument of muzzling of the
press
Tor2ous regula8on
Parliamentary discussions of law of 29 June 1881 show quick dismissal of idea to regulate
defama8on under general rule of art. 1382
Parliamentary debate focuses on whether wrong should be regulated under general or
special criminal law, in order to beVer safeguard freedom of
expression
Criminal regula8on
France England
Tort law
Criminal law Criminal law
Civil responsibility (art. 1382)
Tort of defama8on
Law of 29 July 1881
The influence of Roman iniuria in the analysis of the libel/slander dis2nc2on