The constituent elements:
- There must be an imputation or an allegation, a value judgment, a negative criticism, facts presented in an ironic, interrogative, conditional or even dubious way.
- The remarks must relate to specific and determined facts.
- If they are vague insinuations not likely to prove they are not sufficient
- The persons or all the persons concerned must be identified or identifiable.
- The remarks must have damaged the honor or the consideration of the victim (s).
- Note that it does not matter whether the facts adduced are accurate or not to prosecute a person for defamation.
- One can therefore defame by imputing exact facts.
- In addition, the words must have been expressed in the knowledge that they are defamatory
- And with the conscience of having violated the honor of the person concerned.
- However, there is a presumption of bad faith of the person prosecuted.
There are two special justificatory facts that legitimize the violation of a person’s honor and avoid any condemnation.
These two defenses are the exception of truth and good faith.
The good faith of defamation (What is defamation)
The exception of good faith is a defense created by case law that allows defamatory facts to lose their criminal character.
However, the proof of good faith is not obvious, since it is necessary to gather 4 specific criteria to establish it:
Absence of personal animosity:
The behavior of the journalist must be objective, i.e. his remarks must not imply that he would have “accounts to settle” with the person who accuses him of defamation attorney Tampa.
Legitimacy of purpose:
The purpose of the dissemination of information must be legitimate, that is to say that its purpose is to contribute to a political, historical, intellectual or scientific debate. If, on the contrary, it is simply intended to satisfy an unhealthy curiosity of the public, the aim pursued is not recognized as legitimate.
Prudence and measure in the expression:
This criterion implies that the journalist must be careful in his remarks.
He must also be objective and sincere.
- Verification of sources:
The journalist must absolutely check his sources before distributing his information.
NB: Concerning the defamation committed on Internet, the case law is more contrasted.
However, under the influence of the European Court of Human Rights, two criteria are increasingly replacing these four traditional criteria:
- The debate of general interest:
Since the subject is considered public, this criterion is retained. The Court of Cassation attaches this criterion to a “right to know the public”.
- Sufficient factual basis:
The respondent must have elements enabling him to express himself when he does so.
Either because he has conducted personal and comprehensive investigations or because he has reliable sources.
Subsequent elements cannot be taken into account to characterize good faith.
Material element of defamation
First of all, there must be an imputation or an allegation, that is, a value judgment, a negative criticism, facts presented in an ironic, interrogative, conditional or even dubious way.
Secondly, the remarks must relate to precise and determined facts, vague insinuations that are not susceptible to proof are not sufficient. It must be remembered that the fact imputed may be real or not.
Moreover, these remarks must have damaged the honor or the consideration of the victim (s). Next, the allegation or charge must have prejudiced the honor or consideration of a person to be determined or at least identifiable. Thus, even called by a pseudonym, a person can be the subject of defamatory, since it is identifiable. Finally, with respect to public defamation, it will be necessary to note the public character of defamation.
Moral element of defamation
The words must have been expressed in the knowledge that they are defamatory and with the knowledge that they have compromised the honor of the person concerned. However, it should be noted that the guilty intention is presumed.
There are two special justifications that allow, despite an attack on the honor of the person, dog bite attorney Tampa, to legitimize the words and thus avoid any conviction.