as a result of prostate cancer, his physician, responding to public attacks about his competency in treating the late President – published a book titled Le Grand Secret (”The Big Secret”). In this book sensitive details of relationship were laid bare. Former President’s wife and children, aggrieved by this, launched an urgent application on 19 January 1996. An interim interdict was issued on 18 January 1996 by the Paris Court (Paris Tribunal de Grande instance) against the publisher and the physician. The interim interdict was later made final on 23 October 1996, where the applicant company was ordered to pay damages to the widow of the late President. The court on the 23 October 1996, further maintained a total ban on distribution of the book. The applicant company (publisher) appealed the decision until the matter served before the European Court of Human Rights (ECtHR). In dealing with the injunction which imposed a complete ban on distributing the book after nine (9) months of the President’s death, and the argument that the ban was justified, the ECtHR held as follows: “The court is not persuaded by such reasoning. It notes that by 23 October 1996, when the Paris de Grande instance gave judgment, François Mitterrand had been dead for nine and half months. Clearly, the context was no longer the same as on 18 January 1996, when the urgent – applications, judge issued the interim injunction prohibiting the distribution of Le Grand Secret. The Judge issued the injunction the day after the book’s publication, which itself had taken place barely ten days after President Mitterrand’s death, as the court has already held, distribution of the book soon after the president’s death could only have intensified the legitimate emotions of the deceased’s relatives, who inherited the rights vested in him (see para. 47 above). In the court’s opinion, as the President’s death became far distant in time, this factor became less important. Likewise, the more time that
elapsed, the more the public interest in discussion of the history of President Mitterrand’s two terms of office prevailed over the requirements of protecting the President’s rights with regard to medical confidentiality. This certainly does not mean that the court considers that the requirements of historical debate may release medical practitioners from the duty of confidentiality, …However, once the duty of confidentiality has been breached,… the passage of time must be taken into account in assessing whether such a serious measure as banning a book – a measure which in the instant case likewise general and absolute – was compatible with freedom of expression.” I am in respectful agreement with the sentiments expressed above, and in my view are applicable with equal force to the ‘dead’ persons protection under scrutiny. Criminalizing satire. Under section 103(a) publication of a “defamatory matter” is unlawful unless it is true and it was for the public benefit that it should be published. This section seems to be premised on the idea that deliberate lies, exaggeration and distortion of reality cannot serve any usefulness connected to the purposes of freedom of expression. Because satire by its nature distorts and exaggerates reality, it follows that by providing that publication of a defamatory matter is unlawful provided it is true and for the public benefit, section 103 has the effect of implicitly criminalizing satirical expression. Satirical expression, notwithstanding the fact that it distorts and exaggerates reality, assists individuals in attaining and fostering political participation. Commenting, (in a different context), on the argument that deliberate lies do not in any way contribute to furthering the values underlying guaranteeing freedom of expression, the Supreme Court of Canada R v Zundel (Mclachlin J) said the following: “[T]he submission presents two difficulties which are, in my view, insurmountable. The first stems from the difficulty of
concluding categorically that all deliberate lies are entirely unrelated to the values underlying section 2(6) of the Charter…. The first difficulty results from the premise that deliberate lies can never have value. Exaggeration – even falsification – may arguably serve useful social purposes linked to the values underlying freedom of expression. A person fighting cruelty against animals may knowingly cite false statistics in pursuit of his or her beliefs and with the purpose of communicating a more fundamental message, e.g ‘cruelty to animals is increasing and must be stopped.’ A doctor, in order to persuade people to be inoculated against a burgeoning epidemic, may exaggerate the number or geographical location of persons potentially infected with the virus. An artist, for artistic purposes, may make a statement that a particular society considers both assertion of fact and a manifestly deliberate lie;…All of this expression arguably has intrinsic value in fostering political participation and individual self-fulfillment.” I respectfully agree with these views. In my view by criminalizing satire, the Act impinges upon the freedom of expression more than is necessary in a practical sense in a democratic society. [19] (iii) Proportionally between the effects of criminalizing defamation and its curtailment of the freedom of expression. (a) Effects of Criminalizing Defamation in General. (i) Its deleterious effects on journalistic freedom of expression. Criminalizing defamation has a chilling effect on journalistic freedom of expression. Fear of potential criminal sanction for reputational incursion may result in media practitioners doing what is known as self-censoring. The