Refusal to Insert a Right of Reply: When the Municipality Must Prove Its Good Faith

Imagine: you live in Guéret, in the Creuse. One morning, you open the local newspaper and read an article that directly implicates you. You, owner of a building on Rue du Marché, accused of neglecting your safety obligations. You draft a reply, as the law allows. But the newspaper refuses to insert it. What to do? The Court of Cassation ruled on this question in 1996 in a judgment that recalls a simple but essential rule: the judge cannot simply take sides without examining the documents. He must verify the content of the incriminated article and the refused reply.

Many property owners and real estate professionals are unaware that the right of reply (the ability to have a rebuttal published in a newspaper) is a fundamental right, but its refusal can be challenged in court. However, the trial judges (the courts) must do their job properly. In this case, the municipality of ...... (civil party) faced a refusal to insert a reply from a newspaper. The defendant, Y..., was acquitted at first instance, and the municipality was even ordered to pay damages for abuse of the right to bring a civil action (i.e., for having brought legal proceedings abusively). But the Court of Cassation quashed (annulled) this decision on the grounds that the appeal judges had not examined the documents.

In other words, the Supreme Court reminded that, to determine whether a refusal to insert is lawful or not, one must absolutely read the original article and the proposed reply. This seems obvious, but in practice, courts may be tempted to decide without examining them. The judgment of 24 September 1996 therefore reminds us of a requirement of transparency and rigour. For you, as a property owner or local elected official in Isle or elsewhere, this means that your right of reply is better protected than it seems.

The Facts: A Story Like Many Others

The case originated from a publication in a local newspaper in the Creuse. The municipality of ...... (whose name is not specified in the judgment) considered that an article harmed it. Through its deputy delegate, it sent a right of reply to the newspaper, requesting the insertion of a corrective text. The newspaper refused. The municipality then filed a complaint and brought a civil action (i.e., it initiated criminal proceedings claiming damages) against the publication director, Y..., for refusal to insert a reply, an offence under the Press Act of 29 July 1881.

The criminal court (first instance) acquitted Y..., considering that the refusal was justified. The municipality appealed. The Court of Appeal upheld the acquittal and, in addition, ordered the municipality to pay damages for abuse of the right to bring a civil action, considering that its action was unfounded and reckless. The municipality then appealed to the Court of Cassation (to review the correct application of the law).

The twist: the Court of Cassation ruled in favour of the municipality on principle. It held that the Court of Appeal had not justified its decision because it had not examined the essential documents: the disputed article and the refused reply. Without these documents, it was impossible to say whether the refusal was legitimate. The judgment was therefore quashed, and the case was remitted to another Court of Appeal. Moral of the story: even a municipality can be a victim of summary justice, and sometimes it is necessary to go all the way to the Court of Cassation to enforce commonsense rules.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a fundamental procedural principle: the Court of Cassation reviews the decisions of the trial judges, but for this review to be effective, the judges must enable the Court to verify their reasoning. Concretely, this means that, when the right of reply is at issue, the judge must specify the content of the refused reply and the writing that prompted it (the original article). If these documents are not in the file, the judge must describe or quote them in his decision.

In this case, the Court of Appeal had simply stated that the refusal was justified without describing the content of the writings. The Court of Cassation criticised it for not having considered whether, as the municipality argued, the article contained inaccuracies that justified a reply. The legal basis is Article 13 of the Act of 29 July 1881 on the freedom of the press, which requires the publication director to insert any reply from a person named or identified in an article, unless the reply is contrary to the law, public morals, or unjustifiably harms the honour of a third party. But the judge must verify these conditions.

What few people know: in my practice, I have come across cases where judges simply said 'the refusal is justified' without reading the reply. This judgment reminds that the judge must give reasons for his decision by analysing the documents. This is a requirement of transparency that protects the applicant. The Court of Cassation does not rule on the merits of the refusal, but remits the case so that new judges examine it properly. It is a procedural decision, but with important practical consequences.

What This Means for You — Practically

For a landlord: if a newspaper publishes an article accusing you of leaving your building unsanitary, you have the right to reply. If the newspaper refuses, you can take the matter to court. Now, the judge must necessarily read your reply and the article to decide. In Isle, for example, a landlord whose building on Rue de la République was criticised in the local press might face a refusal. Thanks to this case law, he will know that the judge cannot simply give a general assessment.

For a local elected official: as in this case, a municipality may be criticised. If the refusal to insert is challenged, the judges must seriously examine the writings. This avoids arbitrary decisions.

For a tenant: if you are mentioned in an article about a dispute with your landlord, you can also exercise your right of reply. The same protection applies.

Caution, however: the right of reply is not absolute. The reply must relate to the article, not be defamatory, and comply with certain formalities. But if the refusal is abusive, you can obtain damages (generally a few hundred to a few thousand euros depending on the harm). Legal action must be taken promptly: the deadline is 3 months from the refusal (Article 13 of the 1881 Act).

In short, this decision gives you a procedural lever: you can require the judge to give reasons for his decision based on the documents. If this is not done, you can have the judgment quashed.

Four Tips to Avoid This Type of Dispute

• Keep a copy of the original article and your reply. Without these documents, your action risks being dismissed. Have a bailiff's report made if necessary.
• Comply with the legal form of the right of reply. The reply must be signed, dated, and sent to the publication director within 3 months of the article. It must not exceed the length of the article (unless the article is very short).
• Do not reply in a defamatory manner. If your reply personally attacks the journalist or a third party, the refusal will be legitimate. Remain factual and proper.
• Consult a lawyer before taking legal action. An abusive action can expose you to damages (as the municipality in this case, even though the quashing annulled that award). Prior advice will save you time and money.

Further Reading: Related Case Law and Developments

This 1996 judgment is part of a consistent line of the Court of Cassation requiring trial judges to give reasons for their decisions by referring to the documents in the file. One can cite the judgment of 13 May 1991 (No. 89-85.247) which already sanctioned a Court of Appeal for failing to analyse the content of a disputed writing. More recently, the Criminal Chamber reminded in a judgment of 10 January 2017 (No. 15-86.918) that the right of reply must be interpreted broadly, in favour of the person targeted.

The trend is therefore towards enhanced protection of the right of reply. Courts are increasingly strict on the obligation to give reasons. In the future, it is likely that the Court of Cassation will continue to require a concrete examination of the writings, making it more difficult for judges to rely on a summary assessment.

What You Absolutely Must Remember

FAQ:

• What to do if a newspaper refuses my right of reply? Keep the article and your reply. Send a registered letter to the publication director to formalise the refusal. If the refusal persists, consult a lawyer to take action within 3 months.
• Can I be ordered to pay damages for abuse if I lose? Yes, if your action is deemed abusive (without serious basis). Hence the importance of preparing your case well.
• What are the deadlines? You have 3 months from the publication of the article to request insertion of your reply. The refusal must be challenged within 3 months of the refusal.
• How much does legal action cost? Lawyer's fees vary, but an initial consultation is often affordable (€45 at Maître Zakine). Court costs (bailiff, stamp duty) are modest.
• Does the right of reply also exist for legal persons (companies, associations)? Yes, any natural or legal person named in an article can exercise this right.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →