According to the attorneys who opposed each other at France’s Cour de Cassation in the defamation case filed by Foreign Minister Hor Namhong against opposition leader Sam Rainsy, the court’s judgment last month overturning French lower courts’ conviction of Mr Rainsy was based on new interpretations of press freedom laws.
The fact that Mr Namhong is a public figure also played a role in the matter, they said in telephone interviews Thursday at their respective Paris offices.
On April 27, the tribunal, which rules on whether lower courts correctly interpreted and applied laws when rendering judgments, dismissed defamation charges against Mr Rainsy.
The tribunal, which virtually amounts to a supreme court that deals in matters of press laws, issued a final ruling instead of instructing lower courts to review the case as it often does, said Anne Sevaux, who represented Mr Rainsy at the Cour de Cassation.
This court, whose role is to concentrate on the letter of the law and not to review facts in a case, recognized that the comments published in Mr Rainsy’s 2008 book alluding to Mr Namhong’s behavior while an inmate in a Khmer Rouge prison camp amounted to defamation.
But those comments, the judgment reads, “did not overstep permissible limits of freedom of expression in criticizing a political man’s action.”
“The French press law is extremely complex as the defamatory nature is assessed in terms of the damage it may cause the honor and the reputation of the person targeted,” said Ms Sevaux.
“The defamatory character of the comments was established, but they cannot be sanctioned. They are not at fault if one can prove good faith. It is on this ground that the Cour de Cassation based its decision, considering that the debate was in fact legitimate,” she said.
By debate, the tribunal referred to the issue raised in Mr Rainsy’s work “Des racines dans la pierre,” or Rooted in Stone, regarding, the text of the judgment reads, “the behavior of an important figure during the tragic events that the country has known from 1975 to 1979.” The tribunal considered that it was of legitimate public interest to bring up the issue since it has to do with the past of a public figure, Ms Sevaux said.
“This is a broadening of the freedom of the press,” she added.
“We have a strange jurisprudence in France according to which political polemic allows some exaggeration,” said Didier Bouthors, who represented Mr Namhong at the Cour de Cassation. “This concept of political polemic is prone to justify defamatory comments.”
According to press laws that apply to all publications in France, a person may avoid a defamation conviction by proving that his assertions were true or by demonstrating that, whether they were true or false, those assertions were made in good faith, that there was some research involved, he said.
“This is a direction that I deplore and to which I’m opposed, that public figures can see themselves being accused of defamatory actions without knowing whether they will win their trial,” Mr Bouthors said.
“Lawyers and magistrates’ major concern must be to maintain a balance between one’s right to information-which is essential of course-and this notion of a person’s right, of one’s presumption of innocence, of the truth,” he said.
Since 2000, French law has prohibited the press from publishing photos of a person in handcuffs prior to his conviction on the grounds that such a photo could damage a person’s chances of proving his innocence in court, Mr Bouthors said.
But there is no equivalent legislation regarding the written or spoken word in the media, which is regrettable, he said.
According to Mr Bouthors, there would be grounds for Mr Namhong to bring his case to the European Court. “But I do not know at this point what are Mr Hor’s intentions. I don’t doubt that he will defend himself, that he will be committed to defending his honor,” he said.
Reached Friday, Koy Kuong, spokesman for the Ministry of Foreign Affairs, stressed that the tribunal’s decision recognized the defamatory nature of comments published by Mr Rainsy and the fact that Mr Namhong was a politician had played an important role in the tribunal’s decision.
Contacted by e-mail, Mr Rainsy wrote, “The Cour de Cassation’s judgment will serve as a case in point, in this instance, regarding post-Khmer Rouge justice in Cambodia.”
“Tables are turning to the benefit of Khmer patriots and democrats,” he added.
