Ramadan v. France: You shall not name your accuser in vain

Dr. Alice Dejean de la Bâtie

French criminal law forbids anyone to disclose or even publicly mention the name of the victim of sexual assault without their express written permission. Anyone. Ever. Even the defendants themselves. Even before any trial has taken place. Even if the victim’s name has previously been disclosed countless times. Can such a restriction on freedom of speech stand against Article 10 of the ECHR? This was the question asked to the ECtHR in Ramadan v. France.

Facts

In February 2018, the applicant, a well-known Swiss philosopher and writer, was charged in France with raping a woman, whose identity was later revealed by several online media outlets. In 2019, the woman shared her story online under a pseudonym she later linked to her photo, and launched a fundraising campaign under her real name to raise money for legal fees. In September 2019, the applicant named her in a press release about his upcoming book and in a TV interview. Her name also appeared in this book. A few days later, the woman pressed charges against the writer and his publisher for the ‘broadcasting of the identity of a victim of sexual assault[1]’. Both the trial judges and the court of appeal ruled the applicant guilty for disseminating the victim’s identity via his press release, interview, and book, resulting in a €1.000 fine upon appeal. The Chambre criminelle of the Cour de cassation – the French Supreme Court for criminal matters – upheld this decision, prompting the applicant to take his case to the ECtHR for violating his freedom of expression under Article 10 ECHR.

Judgment

To challenge the conviction, the applicant’s argument was twofold. First, he contended that the wording of Article 39 quinquies of the French 1881 Law on Freedom of the Press, which criminalises the broadcasting of the identity of a victim of sexual assault, was vague. This imprecision, he argued, rendered the law unpredictable. Second, the applicant challenged the necessity and proportionality of his criminal conviction in relation to his freedom of expression. Upholding the reasoning of the French judges on all counts, the ECtHR unanimously rejected his application.

Regarding the vagueness of Article 39 quinquies, the first issue was the definition of the word ‘victim’. The applicant argued that the woman who accused him of rape did not qualify as a victim until he had been convicted of this crime. On the contrary, both the Paris and Strasbourg judges considered that the term ‘victim’ referred, in that context, to any person presenting themselves as such. By accusing him of rape, the woman had de facto placed herself in the position of victim as understood by the French text (§ 30). Another point of contention was the fact that Article 39 quinquies provided for an exception to the criminalisation of the publication when the victim had given their written consent to such publication. According to the applicant, the formulation of the exception was too vague, as it did not specify if the victim had to give consent to every new publication, which made the law unpredictable. Again, the ECtHR decided that the text was precise enough, adding that the applicant ‘could not ignore’ that the condition was not met since he did not have any written authorisation from the victim (§ 30). The Court concluded that Article 39 quinquies was precise enough to qualify as ‘law’ under the definition of Article 7 ECHR. Hence, it provided for a legal basis for the restrictions to freedom of expression allowed by Article 10 § 2 ECHR.

This takes us to the second part of the applicant’s reasoning: the lack of necessity of his criminal conviction in relation to his freedom of expression. He argued that Article 39 quinquies deprived him of any possibility to adequately defend himself against the accusations of rape he was publicly subjected to by the alleged victim in a context of a ‘virulent and incriminating media campaign’. He emphasised that his inability to name her meant that he could not discuss her credibility even if she had chosen to speak publicly about the case (§ 23). However, French judges rejected this line of argumentation, pointing out that given that Article 39 quinquies targeted the mere broadcasting of the identity of a victim, it mattered little in the application of this provision whether the victim’s identity had already been disclosed previously or whether the victim had contributed to their own identification.

Furthermore, even if the woman had published photographs in which she was identifiable, she had also consistently concealed her identity, communicating only under a pseudonym. The applicant had acted knowingly and had not demonstrated that the broadcasting of the woman’s name, in a publication that did not contribute to a debate of general interest, was necessary to his defence. Domestic courts also discussed the proportionality of the penalty, concluding that the fine was appropriate to the nature, duration, and severity of the acts, as well as to the personality, social and professional situation, and the income of the applicant (§ 41). Without adding to the legal analysis, the ECtHR simply endorsed the reasoning of the French judges and concluded that Article 10 ECHR had not been violated.

Commentary

The most striking aspect of Ramadan v. France may be the seamless and harmonious alignment of the various judicial decisions, from trial judges all the way to the ECtHR. After counting amongst less compliant members of the Council of Europe regarding the conformity of their case law to ECHR legal standards, French courts demonstrate in this instance a level of adherence and commitment to the principles of the Strasbourg Court that underscores their willingness to align – possibly driven by a desire to avoid further rebuke from the ECtHR, especially in matters related to Article 10. If there were such a thing as jurisdictional ‘savoir-vivre’, the series of domestic decisions in Ramadan v. France would stand as a prime example of dedication. The Cour de cassation even goes as far as quoting European legal precedents, a practice that the French Supreme Court is slowly warming to despite the reluctance inherent to its Civil Law tradition. The ECtHR rewards the domestic judges for their show of good will by underscoring the coherence and completeness of their legal reasoning. Such harmony can’t but make one slightly suspicious. Is there such a thing as a perfect ruling? Were the legal answers provided by the French courts to a rather complex legal issue so obviously correct that there was no other possible outcome than a unanimous confirmation of every step of their reasoning?

The first doubt arises when faced with the general agreement of judges over the meaning of the word ‘victim’. It is true that the definition proposed by the applicant – following Article 2 of the French Criminal Procedural Code – would deprive Article 39 quinquies of most of its utility since it is limited to people who have been confirmed as victims in a criminal trial. However, the definition chosen by the courts is remarkably broad. To decide that any person who presents themselves as a victim is to be considered one, for the purpose of Article 39 quinquies, is no small statement and would have deserved extensive justification. Whereas the principle of legality dictates that criminal law be strictly interpreted (Penal Code, Art. 111-4), judges here accept to give to the word ‘victim’ a much broader meaning than that even of everyday language. Usually, a victim is a person who ‘has been hurt, damaged, or killed or has suffered’, not a person who says that they have. The reason behind the broad interpretation given in Ramadan v. France is that it is the very purpose of the text to protect accusers before and during – and not only after – criminal proceedings. Amongst other things, this prevents sexual offenders from using the threat to disclose their victim’s identity to deter them from pressing charges. Yet, such a large interpretation of a penal provision comes dangerously close to teleological interpretation, a method susceptible to making the conviction unforeseeable and therefore to violating Article 7 ECHR (Kafkaris v. Cyprus).

Quoting its own decision in Perinçek v. Switzerland, the ECtHR underlines ‘the impossibility of attaining absolute precision in the framing of laws, especially in fields in which the situation changes according to the prevailing views of society’ (§ 28). If the use of the word ‘victim’ was indeed precise enough to keep Article 39 quinquies from direct censorship in the name of the legality principle, this did not exonerate judges from proceeding with their task to strictly interpret the text. This is all the more relevant given that it was precisely in the name of strict interpretation that French courts determined the fact that the identity of the woman had already been disclosed many times prior to the publication of the press release and the interview, including by herself, as almost irrelevant. Emphasising the difference between ‘revealing’ [FR: révéler] and ‘broadcasting’ [FR: diffuser], judges pointed out that Article 39 quinquies used the second term purposefully. Hence, anterior revelations did not affect the criminalisation of later broadcastings, mostly because the broadcasting of the woman’s identity in the press release and interview ‘very significantly broaden[ed] the audience of the information’ (§ 13).

There is yet something to be said about the fact that, despite the identity of the alleged victim being disclosed more than 40 times online and in media outlets from four different countries before it was broadcasted by the applicant himself, there is no mention of anyone else but him – and his publisher – being criminally prosecuted on the basis of Article 39 quinquies. This may be explained by both the attachment of French Law to the principle of prosecutorial discretion (Crim. Proc. Code, Art. 40) and the fact that the ratio legis of Article 39 quinquies would probably dictate that prosecution only be appropriate when the victim themselves wish to press charges. However, contrary to many other expression-related offences (1881 Law, Art. 48), Article 39 quinquies does not require such authorisation from the victim. Further, prosecuting and criminally sanctioning the applicant for a crime that a dozen others committed without anyone finding any fault there does raise questions of the necessity and predictability of prosecution.

Strictly speaking however, distinguishing the mere broadcasting from the actual revelation of a person’s name is perfectly coherent when it comes to the interpretation of the 1881 Law, as this text carefully uses one term or the other depending on the context. Indeed, Ramadan v. France takes place in a very specific legal framework in French Criminal Law: the 1881 Law on Freedom of the Press. This legal monument to freedom of speech provides for most expression-related crimes such as public defamation or insult, incitation to commit violent crimes, broadcasting of fake news, public outrage to foreign diplomats, and, as in the present case, broadcasting of the identity of a victim of sexual assault. Despite the usually immoderate taste of French lawmakers to codify every small piece of legislation since the Napoleonic era, the 1881 Law stands alone, uncodified, standing out in an otherwise rather tamed legal landscape. The main reason for this ‘resistance’ is precisely that there is something truly unusual about criminalising public expression. The same logic is enshrined in Article 10 of the European Convention as well as in the case law of the ECtHR.

As a matter of fact, the ECtHR emphasises in Ramadan v. France that the margin of appreciation of member states is much broader when the criminalised expression does not concern a question of general interest (§ 36). This is clearly a point that French judges had in mind when rendering their decisions. They highlighted that the publication of the name of the victim did not, in the present case, contribute to a debate of public interest. If the conclusion is not surprising in itself, the lack of justification to support it remains puzzling. In the post-#metoo era, and more specifically in a context of overwhelming eye-opening testimonies of sexual abuse committed by public figures from the cultural industry, Ramadan v. France itself is clearly part of a public interest debate. It is also not generally true that the identity of an accuser is never relevant to such debates. So it would have been interesting to distinguish more precisely on the one hand the importance of the case with regard to this issue, and on the other the (ir)relevance of the victim’s identity to further this debate.

Furthermore, it is surprising that the question of the right to publicly defend oneself was not more extensively addressed by either domestic or European judges. Traditionally, French law shows great leniency toward the public expression of criminal defendants, considering in particular that they are not bound by the strict rules imposing the confidentiality of criminal proceedings. In contrast, Article 39 quinquies, especially given the broad meaning given to the word ‘victim’ and the law’s disregard for anterior publications, creates in the public sphere an inequality between the accuser and the defendant. Whereas the first may speak up anonymously and protect their private life from the uproar of public opinion, the second is identified publicly from the start and finds themselves exposed to public commentary, even voyeurism. Arguably, this inequality comes, in a context such as Ramadan v. France, as a welcome counterweight to centuries of masculine dominance accentuated by the aura of untouchability that fame provided to many men for so long. However, the inequality remains and it would have been interesting to clarify further how it may be justified. For example, an argument could be made that the accuser was also limited in her freedom to name the defendant by the criminalisation of defamation (1881 Law, Art. 29) and false accusation (Penal Code, Art. 226-10).

Conclusion

Ramadan v. France sheds light on a little-known piece of French legislation, over a quarter-century older than #metoo (it was first passed in 1980). Yet today, more than ever, Article 39 quinquies appears as a powerful shield for victims of sexual assault who wish to speak out against their aggressors while protecting their private lives. Hidden in the confines of the 1881 Law on the Freedom of the Press, this text is one of the few genuinely feminist provisions within French Criminal Law. If carefully interpreted and enforced with discernment, it shall withstand scrutiny under Article 10 ECHR because it is fair and justified, not merely because courts silently allow it to stand. As such, it merits the strongest arguments against it to be thoroughly discussed and debated.

[1] In French Criminal Law, rape is considered a sub-category of sexual assault.