Legal precedent could be set in the next few weeks if a pair of millionaire newspaper owners get their way.
The Barclay brothers, Sir David and Sir Frederick, are bringing a defamation action against The Times. But instead of bringing it in the usual forum of an English court, they have launched criminal proceedings in France.
The brothers, who bought The Telegraph earlier this year, brought their claim after The Times published an article penned by media editor Dan Sabbagh last November. The piece was critical of the way the Barclays did business.
In April, the Barclay twins served proceedings on The Times, its editor Robert Thomson and Sabbagh. The brothers, who are being advised by Anglo-French firm Fauchon Levy Khindria and French sole practitioner Daniel Amson, are asking for a droit de réponse, (right to reply) in addition to seeking a criminal prosecution.
Under French press law, someone who thinks their honour has been besmirched can demand the publication, within three days, of a letter setting the record straight. If it sounds a little archaic, that’s because it is – the right is set down in a law dated 29 July 1881, safeguarding the liberty of the press.
The brothers felt able to use French law because The Times sells a relatively small number of copies in France, particularly in Paris.
But The Times claimed that it was subject to English law and the jurisdiction of the Press Complaints Commission, and therefore argued that it did not have to publish the Barclays’ response. Accordingly, the Barclays took one of the other routes available to them under French law, that of criminal defamation proceedings. If found guilty, Thomson and Sabbagh could face a fine ranging from around €12,000 (£8,000) up to €45,000 (£30,000).
The case is attracting interest on both sides of the Channel because of its highly unusual nature. There is little precedent for UK citizens to sue UK publications in France. The Barclays themselves are among the few who have tried previously, but with limited success.
In 1996 the pair took journalist John Sweeney and the BBC to court in the northern French town of Saint-Malo after Sweeney gave an interview on BBC Radio Guernsey. The brothers used Saint-Malo as the forum for litigation because they said the broadcast could be heard across northern France as well as the Channel Islands.
But the Saint-Malo judge threw out the claims, prompting the Barclays to go on up to the appeal court in nearby Rennes. There, the court ordered Sweeney to pay FFr20,000 (around £2,200 at the time) in damages, but threw out the case against the BBC.
Few other Britons have sued in France for defamation. The Duchess of York, Sarah Ferguson, succeeded in a claim against Paris Match in 1992 to prevent the magazine republishing paparazzi photographs of her on holiday with American businessman John Bryan. Paris Match is, however, a French, rather than a UK, publication.
Most cross-border defamation cases come the other way. In 1995 Fiona Shevill, an Englishwoman who worked for a short time in a Paris bureau de change, brought a defamation claim against French publishers Presse Alliance. The case went to the European Court of Justice (ECJ), which ruled that English courts did have jurisdiction to hear the case. The ECJ stated that, because France Soir, the magazine in which Shevill said she had been defamed, sold a couple of hundred copies in this country, the country did count as the place where harm occurred.
The Shevill ruling encouraged forum shopping for a series of cases by claimants persuaded that this jurisdiction represented their best chance of a successful case, although the courts do not always agree. Russian businessman and politician Boris Berezovsky successfully persuaded the House of Lords in the 1990s that England was the right jurisdiction to hear his claim against US-based Forbes magazine. This year, Dow Jones successfully fought a similar case in the Court of Appeal.
The Barclays’ lawyers are hoping that France will once again allow their case to be heard. To fight the current action, the brothers have turned away from usual adviser Lovells. Partner Paul Dacam acted for the Barclays on the English part of the 1996 BBC claim, and the firm regularly advises them on corporate matters.
Monique Fauchon at Fauchon Levy Khindria is dealing with their case from London. She is a partner at the three-lawyer firm, and more regularly advises on property matters, although she has a sideline in jurisdictional issues. In Paris, sole practitioner Daniel Amson takes over. Amson is also a law professor in Lille who has written extensively on human rights.
The Times, meanwhile, has enlisted Clifford Chance‘s sizeable French office and litigation partner Jean-Frederic Gaultier for its defence.
In April, The Times’ editor Thomson said the case could send out signals to “more vexatious litigants” wanting to silence the media. Thomson added that the precedent the Barclays were setting was “unfortunate”.
He has a good point. If the Paris court decides that he, Sabbagh and his publication are guilty of the charges laid at their door, they are likely to have to accede to the Barclays’ request for a droit de réponse.
According to some media specialists in the UK, this could set a dangerous precedent. Mishcon de Reya partner Karen Sanig points out that, until now, the right has been the preserve of French-language publications. Sanig warns of the potential conflict of laws that such a judgment could cause.
It is not as if the UK has no similar recourse. The Barclays could feasibly have taken their complaint to the Press Complaints Commission or to an English court. For those libel claimants who are successful in England and Wales, an apology as well as damages is usually forthcoming.
Yet despite the fact that the Barclays themselves have recently invested a sizeable amount of money in buying the Telegraph Group, they clearly see that there are advantages to pursuing their case in France. Certainly, a criminal prosecution may be seen by some as being more severe than a successful civil libel action.
But France is not England, and French newspapers do not have the same reputation for aggressive reporting as Fleet Street. The question, when the dust has settled, will be whether the freedom of the press has been damaged by this case.
but will this diminish the freedom of the press? Joanne Harris reports