MORICE V.

MORACCHINI

Region & Country - (FRANCE)

Supreme (Court of final appeal)

Types of law- criminal law, international/regional human rights law.

Tags- Criminal defamation, Public officials, Judiciary (protection of)/ contempt of court

Rule Applied- right to a fair trial (Article 6) and right to freedom of expression (Article 10)

Analysis- Reasoning given by the judge in answering the question of law.

Case Summary and Outcome

The French Court of Cassation cancelled the conviction of a lawyer for “public defamation of a civil servant”.
The conviction was in response to critical statements he made in an interview with Le Monde newspaper about
the handling of an investigation into the death of his client’s husband. The conviction had been subject to an
application before the European Court of Human Rights and, in April 2015, the Grand Chamber of the
European Court found that the conviction had violated the lawyer’s right to freedom of expression under
Article 10 of the European Convention on Human Rights. Following this decision, the case came before the
Court of Cassation for review. The Court of Cassation applied the reasoning of the Grand Chamber, and found
the statements of the lawyer to fall within the permissible limits of the right to freedom of expression.
Accordingly, the Court of Cassation found the conviction to be in violation of the right to freedom of
expression.

Facts

The background to this case can be traced back to October 19, 1995 when the French judge Bernard Borrel
was found dead in Djibouti under suspicious circumstances. His death was subject to a number of judicial
investigations in France. In October 1997, the judicial investigation was assigned to Ms. M and Mr. LL as
investigating judges. The investigation had suffered from a number of irregularities following their
appointment. The case was later withdrawn from the judges, and the new investigating judge was named as
Judge P. In a report published by Judge P, it had come to light that a video-cassette of a site visit to Djibouti
was not in the judicial investigation file and was not registered as an exhibit. This video-cassette was
accompanied by a friendly letter from the public prosecutor of Djibouti to Ms. M, which was critical of Mrs.
Borrel, the wife of Bernard Borrel, and “her lawyers”.

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Mr. Morice, the lawyer of Mrs. Borrel, wrote a letter to the Minister of Justice to complain about these
developments. Excerpts of this letter were later published in Le Monde, alongside comments made to the
journalist by Mr. Morice. These comments questioned Ms. M’s and Mr. LL’s “impartiality and fairness”.

On July 16, 2008, the Rouen Court of Appeal found Mr. Morice guilty of “public defamation of a civil servant”
and ordered Mr. Morice to pay a fine of 4,000 EUR and damages. Mr. Morice argued that he could rely on
immunity from prosecution, as the letter was sent to the Minister of Justice and so could benefit from a
provision which sought to protect records relating to judicial proceedings and pleadings filed in court (section
41 of the Press Act). The Court of Appeal rejected this argument on the basis that the letter was not part of
any proceedings involving the exercise of defence rights before a court of law. An appeal filed by Mr. Morice
to the Court of Cassation was later dismissed.

Mr. Morice then filed an application to the European Court of Human Rights (European Court). On April 23,
2015, the Grand Chamber of the European Court found violations of Mr. Morice’s right to a fair trial (Article
6) and right to freedom of expression (Article 10) (see Morice v. France).

In April 2016, the Court of Revision and Review of Criminal Convictions ordered for a review of Mr. Morice’s
case by the Court of Cassation.

Decision Overview

The Court of Cassation (Court) first considered whether the lower courts were correct to find that Mr. Morice
could not benefit from the immunity provided by section 41 of the Press Act. Section 41 of the Press Act states
that “no proceedings for defamation, insult or abuse shall arise from any faithful record of judicial proceedings
drawn up in good faith, or from any statements made or pleadings filed in a court of law. […] Defamatory
allegations that are unrelated to the case may, however, give rise to criminal prosecution or civil actions by
the parties, where such actions have been left open to them by the courts, and, in any event, to civil action by
third parties.” The Court held that this provision did not protect statements publicised outside the courts and
unrelated to ongoing proceedings. Accordingly, the Court of Appeal was legally justified in reaching its
decision that Mr. Morice could not benefit from the immunity under section 41 of the Press Act in relation to
the interview in Le Monde.

The Court then turned to consider whether the decision of the Court of Appeal complied with Article 10 of the
European Convention on Human Rights. The Court found that Mr. Morice’s statements in Le Monde dealt
with a matter of “general interest” relating to the judicial treatment of a criminal case which had national
repercussions. Furthermore, the Court found that the statements were “value judgments” with a “sufficient
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factual basis”, the factual basis being the judges’ failure to place a video-cassette in the investigation file and
the discovery of a friendly letter from the public prosecutor of Djibouti to one of the investigating judges
denouncing Mrs. Borrel’s and her lawyers’ behavior. In light of these considerations, the Court held that Mr.
Morice’s statements could not be reduced to mere statements of personal animosity. Instead, according to the
Court, they fell within the permissible limits of his right to freedom to criticise the judges’ actions.

The Court concluded that the Court of Appeal violated Mr. Morice’s right to freedom of expression under
Article 10 of the European Convention on Human Rights, and cancelled the conviction against Mr. Morice for
defamation.

2.Name of the case- Raghav Chadha v. State

Name of the Court- High Court

Details of the Bench- Single Judge Bench (Sangita Dhingra Sehgal, J.)

What stage the case is (0.5 mark)- Remand

rule applied with own analysis (2 marks) - section 499 of the Penal Code, 1860

Connecting the case with rule and learners

critical or comparative analysis (1.5 marks)- the complaint has to be Read as a whole in order to
determine whether the allegations contrived therein are prima facie sufficient to constitute an offence
u/s 499IPC triable by a magistrate.

Conclusion

suggestions (1 mark)

Case Summary and Outcome

The High Court in Delhi, India confirmed that the Indian Penal Code provision criminalizing defamation
continues to apply even when the expression had been made electronically. An Indian politician had applied
to the High Court to set aside a summons following a charge of criminal defamation in relation to a series of
tweets and retweets. The High Court held that the determination of whether the retweets in the present case
met the requirement of “publication” had to be considered in light of all circumstances in the case and that a
trial court was the appropriate forum for such a determination. The Court upheld the summons and referred
the matter back to the trial court for hearing. Jaitley and Chadha ultimately reached a settlement.

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Facts

In March 2017, Arun Jaitley, the Indian Minister of Finance, Corporate Affairs and Information and
Broadcasting, filed a criminal complaint accusing Raghav Chadha, a member of an opposition party, and other
individuals of defamation. Jaitley alleged that Chadha and the others had engaged in a “false, malicious and
defamatory campaign against him and his family” which was “calculated, engineered and designed for gaining
political mileage and other unwarranted benefit at the cost of causing irreversible damage to [Jaitley’s]
reputation” [para. 3]. Jaitley referred to a series of tweets posted on Twitter in December 2015 which stated
that the Central Bureau of Investigation had raided the house of a bureaucrat in the Government of Delhi in
search of information linking Jaitley to corruption with the Delhi District Cricket Association.

After a summoning order was issued by the Chief Metropolitan Magistrate in Delhi, Chadha filed an
application in the Delhi High Court to challenge the legitimacy of the summons in relation to the criminal
defamation charges brought against him.

Decision Overview

The central issue for the Delhi High Court to determine was whether there was a prima facie case of
defamation against Chanda, and so whether the summoning order was legitimate. This Court was not required
to determine the merits of the defamation charge.

Chadha maintained that because the communications made by him which formed the basis of the criminal
defamation charge were electronic they were governed exclusively by the Information Technology Act, 2000
(the IT Act) and not by section 499 of the Penal Code, 1860 (which criminalizes defamation). He argued that
as the IT Act should be seen as the primary legislation governing online expression there could therefore be
no criminal defamation in respect of online speech. In the alternative, Chadha argued that merely retweeting
an existing tweet written by another individual did not amount to publication – a necessary element of the
offence of defamation [para. 4].

Jaitley argued that the remedy of criminal defamation under the Indian Penal Code also extended to online
expression. He also submitted that a retweet amounted to publication as a fresh representation or endorsement
of the views in the original tweet and that, irrespective of the position of a retweet in defamation law, Chadha
and the other individuals had made other similar, defamatory statements in print and electronic media in their
individual capacities and as members of their political party [para. 5].

The Court held that the IT Act did not displace the authority of section 499 of the Penal Code and that,
therefore, criminal defamation remained an available remedy in respect of online speech.

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In ascertaining whether a retweet constitutes publication as required for the offence of criminal defamation
the Court referred to the foreign jurisprudence principles raised by Chadha supporting his argument that a
retweet was “merely a technical enhancement to forward the original tweet” [para. 12], and to the Indian
jurisprudence raised by Jaitley in arguing that a retweet constitutes re-publication and therefore meets the
requirements for “publication” [para. 13].

However, the Court emphasized that a “perusal of the complaint” indicated that Chadha and the other
individuals had “participated in press conference, issued derogatory statements orally, used twitter handles,
retweeted, disseminated, defamatory imputations targeting [Jaitley] through platform of press and media” and
that the question of whether a retweet constituted publication had to be considered with regard to all the facts
and circumstances of the case [para. 16]. Accordingly, the Court held that any comment on whether the
retweets in this case constituted publication for the purpose of criminal defamation would be prejudicial to the
finding of fact by the Trial Court. The Court upheld the summons and sent the matter to the Trial Court for
determination on the merits.

Contracts Expression

The High Court in Delhi noted that the determination of whether a retweet amounts to publication for
constituting the offence of criminal defamation depends on the facts and circumstances of the case, and that
this determination must be made by a Trial Court. In declining to rule authoritatively on this matter the High
Court opened the door for retweets to become the basis for conviction in some criminal defamation cases.

3. Name of the case- Independent Newspapers Holdings Ltd. v. Suliman (South Africa)

Name of the Court – Supreme (Court of final appeal)

Details of the Bench- Constitutional Law (MARAIS, SCOTT, MTHIYANE, NUGENT JJA and PONNAN
AJA)

What stage the case is (0.5 mark) – Disposed of

rule applied with own analysis (2 marks) - constitutional right to privacy and dignity

Connecting the case with rule and learners

critical or comparative analysis (1.5 marks)

Conclusion

suggestions (1 mark)

Case Summary and Outcome

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The newspaper, Cape Times, published two articles following a bombing at a Planet Hollywood. These articles
named Walleed Suliman as a suspect, included his photograph in the write-up, and stated that he had been
arrested and detained overnight by the police in connection with the bombing. These acts were found to be
defamatory and, even though press attention was warranted because the public had an interest in the
development of the police investigation in this matter, the naming of a suspect prior to a court appearance was
a violation of Sulliman’s constitutional right to privacy and dignity.

Facts

Walleed Suliman brought a suit against Independent Newspapers Holdings Limited, proprietor of the Cape
Times newspaper, after the paper published two articles. These articles were published following the 1998
bombing in Cape Town at a Planet Hollywood and named Suliman as a suspect (paras 1, 2, 3). Suliman
objected to the first article’s publication of a full color photograph of him in handcuffs with the caption
“Walied Suleiman [sic] is led away by a local policeman at Cape Town International Airport.” He also object
to its text, which identified Suliman as a suspect who was being held, along with his wife and cousin, after an
anonymous tip led the police to believe they were attempting to leave the country (para 6). The second article
included similar details of Suliman’s arrest, but also included that the three suspects were actually being held
on grounds of violations of the Identification Act 72 of 1986 and the Aliens Control Act 96 of 1991 (para 10).

Suliman, upon finding out about the second article, amended his claim to include objections to what he asserted
were false statements in the articles. Namely, he objected to the claim that those investigating the bombing
arrested Suliman, his wife, and cousin., Suliman challenged these articles because they did not make clear that
he, his wife, and cousin were not arrested in connection with the explosion, but rather were taken into custody
in regards to passport irregularities (paras 10, 11). Suliman sought damages on the grounds that these articles
were defamatory and violated his rights to dignity and privacy (para 6).

Decision Overview

The case came before the Supreme Court of Appeal after Independent Newspapers appealed the lower court’s
grant of damages to Suliman. Judge Marais began his analysis with the question of the defamatory nature of
the articles’ claims (paras 23, 24). The court began by agreeing with the trial judge that Suliman’s assertion
that the articles convey the meaning that Suliman was responsible for the bombings to be untenable (para 24).
The court grants that the articles make clear that Suliman was only a suspect, and the question then turns to
what a reasonable reader would infer from the article (para 25). The articles reported that a “tip-off” led the
police to Suliman. Therefore, the issue of what a reader infers from such wording and the question of whether
“the words would tend to lower the plaintiff in the estimation of right-thinking members of society generally”

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becomes crucial (para 29). The court adopted this reasonable person standard as the test for determining when
language is defamatory (para 29).

According to the court, “[t]o say of a man that he has been arrested and detained in custody by the police for
questioning as a suspect in the commission of a serious crime is, in my view, defamatory…despite an
accompanying statement that the police regard him as a suspect only because of an anonymous tip-off” (para
31). The court further found that “some damage is done to the reputation of a person when the public is told,
before a decision to charge him with a serious crime has been taken and before he has appeared in court, that
he is under arrest on suspicion of committing that crime” (para 32). The court argued that the damage to one’s
reputation cannot be undone, and that mere suspicion creates doubt that cannot be lifted (para 32).

Having decided that the articles were defamatory in that they named Suliman as a suspect, noting that he was
held for questioning after being prevented from leaving the country, the court then proceeded to find that these
statements were nonetheless true (paras 37, 38).

The court then turned to the question of public interest. The court acknowledged the potential disconnect
between what rights should be preserved for the public interest and the constitutionally entrenched rights to
dignity, privacy, freedom of expression, and freedom to receive and impart information (para 44).
Accordingly, “[t]he weight assigned to each of them in a given situation will vary according to the
circumstances attending the situation…it is a matter of ad hoc assessment of what weight should be assigned
to the respective rights in the particular circumstance of the case” (para 44).

With this in mind, the court dismissed the idea that it could “never be in the public interest or for the public
benefit for the media to name a suspect and publish a photograph of him or her before any court appearance”
(para 45). However, in this case, because of the detrimental impact that premature disclosure of a suspect’s
identity can have, the court asserted “greater weight should be assigned to the protection of the constitutional
right to dignity and privacy and the common-law right of reputation than to the right of the press to freely
impart information to the public” (para 47).

The court argued that the press would not be “permanently deprived of the right to identity the suspect,” but
rather should have to wait until the first court appearance (para 47). The court was careful not to say that the
press was limited in informing the public of basic facts and said that the press was free to state that an
“unnamed suspect” was arrested in connection with a crime. The court argued that it was not in the public’s
interest or benefit to have the identity of a suspect prior to formal charges (para 48).

The court found that the articles had impaired Suliman’s right to dignity (para 52), but that there was no
invasion of privacy because the issues reported on were public matters (para 58). Therefore, the court upheld

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Suliman’s damages on the grounds of defamation and affront to dignity (para 60). Judge Nugent issued a
concurrence that looked further at the issue of truthfulness in regards to claims of defamation (paras 68-82).

Mixed Outcome

The decision from the Supreme Court of Appeal to grant damages to Walleed Suliman on grounds of
defamation and impairment of dignity provided a mixed outcome in terms of expansion of freedom of
expression law. Although the case clearly placed limits on the right of the press to disseminate information
about suspects in criminal cases, the Court did not bar publication entirely when it held that the premature
disclosure of information about Suliman, even on a topic that was of great interest to the public, unjustifiably
interfered with his constitutional rights. The Court asserted that this was not an absolute rule, and that the
circumstances behind the need for early disclosure of sensitive information should be taken into account when
deciding this type of case in future (para 46).

4. Name of the case- US= Pennsylvania v. Knox

Name of the Court- Supreme Court of Pennsylvania

Details of the Bench- Constitutional Bench (Saylor, C.J., Baer, Todd, Donohue, Dougherty, Wecht, Mundy,
jj.)

What stage the case is (0.5 mark)- Dispose of

rule applied with own analysis (2 marks)- First Amendment to the United States Constitution

Connecting the case with rule and learners

critical or comparative analysis (1.5 marks)

Conclusion

suggestions (1 mark)

Case Summary and Outcome

The Supreme Court of Pennsylvania found that Jamal Knox’s speech in a music video, which directly named
and targeted individual police officers, was not protected under the First Amendment. Knox posted the video
after being arrested on drug charges to express his “hatred” of the Pittsburgh Police and his wish to kill
police and their informants. After the police discovered his video, Knox was charged with making terroristic
threats. The Court acknowledged that art can be shocking and rap is often a form of venting on grievances,
but that the First Amendment is not absolute. Taking into consideration the contextual circumstances, the
Supreme Court found that the lyrics constituted “true threats” and therefore, Knox could be held criminally
liable without violating the First Amendment.

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Facts

In April 2012, Pittsburgh Police Officer Kosko conducted a traffic stop on Jamal Knox and Rashee
Beasley. After a failed attempt to flee, Knox and Beasley (hereafter, “the Defendants”) were apprehended and
placed under arrest. The police found a large amount of heroin and cash in the vehicle, as well as, a loaded
firearm that had been reported stolen. Detective Zeltner arrived at the scene and identified the two men despite
Knox’s attempt to provide the arresting officer with a fake name. Officer Kosko and Detective Zeltner were
called to testify against the Defendants in a criminal case.

While the charges resulting from the traffic stop were pending, a Youtube account “Beaz Mooga” (alleged to
belong to Beasley) posted a music video for a song called “F–k the Police” featuring both Defendants. The
lyrics included “hatred” of the Pittsburgh Police and descriptions of killing police and their informants. The
lyrics also called out the aforementioned officers by name, alluded to the fact that the Defendants knew the
officer’s schedules and where the officers lived. For example, Mayhem Mal, i.e., Jamal Knox in Verse 1
rapped:

This first verse is for Officer Zeltner and all you fed force bitches/And Mr. Kosko, you can suck my dick you
keep on knocking my riches/. . . So now they gonna chase me through these streets/And I’ma jam this rusty
knife all in his guts and chop his feet/You taking money away from Beaz and all my shit away from me/Well
your shift over at three and I’m gonna fuck up where you sleep. [full lyrics can be found in the attached
decision]

When the police discovered the video, they charged the Defendants with making terroristic threats under
Section 2706(a)(1) of the Pennsylvania Crimes Code, and witness intimidation pursuant to Section 4952(a) of
the Pennsylvania Crimes Code. Officer Kosko testified that the video was shocking and was one of the reasons
why he left the Pittsburgh Police. Detective Zeltner stated that the video made him fear for the safety of
himself, his family, and fellow officers. Detective Zeltner was given time off and a security detail. The music
video was the sole conduct in which the charges were brought. Jamal Knox asserted the defense that the lyrics
were protected speech and a conviction would violate his First Amendment rights. The criminal court rejected
the defense and found Knox guilty on all counts.

Jamal Knox appealed the decision arguing in part that the lyrics in the video were constitutionally protected
speech. Furthermore, he argues that he never intended the video to be uploaded, he never meant to threaten
anyone, and that the lyrics were solely artistic expression. The lower court found that the lyrics constituted a
type of speech (“true threats directed to the victims”) that is not protected by the First Amendment. Knox
ultimately appealed the decision to the Pennsylvania Supreme Court.

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Decision Overview

The Pensylvania Supreme Court reviewed the appeal concerning if the music video “constitutes protected free
speech or a true threat punishable by criminal sanction.”

The Court acknowledges that art has “has the power to shock.” The Court cites to an amicus brief provided by
the ACLU of Pennsylvania which argues that “sometimes” rap is “saturated with outrageous boasts and violent
metaphors.” Furthermore, rap is “a means for those who disagree with the status quo to vent their frustrations,
thereby lowering the likelihood they will engage in physical violence.” The Thomas Jefferson Center for the
Protection of Free Expression and the Marion B. Brechner First Amendment Project add that violence is
protected in movies and video games, and that, rap should be afforded those same First Amendment
protections. The Court turns to determine if the “true threat doctrine” is met.

The First Amendment is not an absolute right and can be limited. A speaker can be held criminally or
civilly liable for certain types of speech. When a speaker threatens unlawful violence, the speaker can be
subject to criminal sanction. However, these threats must be “true threats” not hyperboles. The Court cites
to Watts which stated that a criminal “conviction could only be upheld if his words conveyed an actual threat
as opposed to political hyperbole.” The Court can look at the entire context of the supposed threat to determine
if it a true threat. In the cases following Watts, more objective tests over a speaker subjective test emerged.
The Court acknowledges that the U.S. Constitution permits “states to criminalize threatening speech which is
specifically intended to terrorize or intimidate.” The Court further acknowledges that “evidentiary weight
should be given to contextual circumstances” to determine if the speaker acted with the necessary intent.
The Court first turns to the content of the speech. The Court argues that their primary focus is violence towards
specific police officers. The Court argues that the lyrics are too specific and are not “do not merely address
grievances about police-community relations or generalized animosity toward the police.” The Court quotes
the lyrics which discuss making fake 9-1-1 calls to kill the police officers that respond. The Court is concerned
that the Officers are called by name and that the lyrics allude to the fact that Defendants knew when they ended
shifts. The Court argues that this specificity contributes to it being a true threat. The Court states the lyrics
directly mention the original traffic stop by stating that “knockin’ my riches” is in direct response to
Officer Kosko confiscating cash. Finally, the Court states the lyrics “suggest a knowledge of the identity of
the officers’ confidential informants and a plan to murder at least one such informant with a Glock.”

Turning to contextual factors such as whehter the “threat was conditional, whether it was communicated
directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in
violence, and how the listeners reacted to the speech. ” The Court argues that the threats are mostly
unconditional and that the police took protective measures in response to hearing the lyrics. While the song
was not communicated directly to officers, the Defendants’ prior conduct suggests that they knew it was

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uploaded or “knew publication [to a public platform] was inevitable.” The Court also cites the fact that the
Defendant was originally found in possession of a firearm as reasonable means for the Officers to believe that
the Defendant might engage in violence.

The Court attempts to distinguish these lyrics from other lyrics that may also express violence. The Court
notes that lyrics that express violence can be protected by the First Amendment, rather it is the real or actual
threats in the lyrics in question that are not protected. The Court refuses the notion that expression of
genuine intent to inflict harm is protected by the First Amendment due to how it is presented.

The Court affirms the ruling of the Superior Court. That the lyrics in the music video are not speech protected
by the First Amendment and that Jamal Knox can be held criminally liable for the lyrics.

Mixed Outcome- This case aligns with other First Amendment case law regarding criminal threats so it could
be considered neutral. However, there is very well an argument that this type of speech should be protected.
There is no denying that the lyrics are violent, but the conviction was based solely on the lyrics and no other
conduct. The Officers are named in verse 1, subsection 1; however, it can be argued that the direct threats are
not made until verse 1, subsection 3. It could be argued that these threats are too vague, as it is unclear whose
feet they are gonna cut off and whose (if any) shift actually ends at three. The fact that the speech may be
violent or alarming is not enough to be considered a criminal threat. It is important to protect First Amendment
rights even if the speech is unpopular or the appellant is arguably unsympathetic.

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