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FEES: 500 € CASE NO. 06/08678
JUDGMENT OF 21 MAY 2008
COURT OF APPEALS OF PARIS
11th Chamber, Section A
Delivered publicly on Wednesday, May 21, 2008, by the 11th Chamber of Criminal Appeals, section A.
On appeal from a judgment of the Paris Tribunal de Grande Instance, 17th Chamber, of October 19, 2006, (P0433823039).
PARTIES BEFORE THE COURT:
Office of the Public Prosecutor
Civil party, non-appelant
Residing at 206 Jaffa St, Jerusalem (Israel)
National Television Company FRANCE 2
Civil party, non-appelant
Residing at 7 Esplanade Henri de FRANCE, 75907 PARIS Cedex 15
Assisted and represented by Benedicte AMBLARD, advocate at the Paris bar, attorney registration number TQB113 and by Francis SZPINER, attorney registration number R049
JUDICIAL PANEL at the oral hearings and deliberations:
President: Mrs. TREBUCQ
Counselors: Mr. CROISSANT
COURT CLERK: Mrs. DU PARQUET at the oral hearing and rendering of the judgment
OFFICE OF THE PUBLIC PROSECUTOR: represented at the hearings and the rendering of judgment by Mr. BARTOLI, attorney general.
SUMMARY OF THE PROCEEDINGS
Philippe KARSENTY was summoned before the criminal court by order of the examining magistrate, charged with having, in PARIS and on the national territory:
• On November 22, 2004, by means of an audiovisual communication – in this case, by publishing on the internet website www.M-R.FR an article entitled “FRANCE 2: Arlette Chabot And Charles ENDERLIN Should Be Removed From Their Positions Immediately,” which contained the statements quoted in the body of this judgment – alleged or imputed facts impugning the honor or esteem of the national television company, FRANCE 2 and Charles ENDERLIN.
• On November 26, 2004, by means of an audiovisual communication – in this case, by publishing on the website a press release entitled “FRANCE 2 : Arlette Chabot And Charles ENDERLIN Should Be Removed From Their Positions Immediately,” which contained the statements quoted in the body of this judgment – alleged or imputed facts impugning the honor or reputation of the National Television Company, FRANCE 2 and Charles ENDERLIN,
Acts foreseen and penalized by articles 23, 29 section 1, 32 section 1, 42, 43 of the law of July 29, 1881; 93/3 of the law of July 29, 1982.
The court, in a judgment rendered after due hearing of the parties,
Rejected the defense plea,
Found Philippe KARSENTY guilty of the charges and sentenced him to pay a 1,000 € fine,
Granted the petition of the National Television Company FRANCE 2 and Charles ENDERLIN as civil parties and ordered Philippe KARSENTY to pay to each the sum of one euro in damages and interest and, together, the sum of 3,000 € under article 475-1 of the code of criminal procedure.
The appeal was filed by attorney Pierre-Louis DAUZIER, for Philippe KARSENTY, on October 19, 2006, in opposition to the criminal and civil judgments.
By orders staying the running of prescription, dated January 10, March 28 and June 20, 2007, the court set the case for hearing on September 12, 2007.
At this hearing, after having studied, at the request of the civil parties, several excerpts from FRANCE 2’s televised news, regularly transmitted by the parties, including the report broadcast on the 8:00 p.m. televised news September 30, 2000, and heard the parties on Philippe KARSENTY’s petition to the court to appoint an expert whose task, after having viewed the 27 minutes of rushes filmed on September 30, 2000 at the Netzarim junction by cameraman Talal ABU RAMAH, would be to determine whether there is a link between the scenes preceding the report and the images of the report itself. The defendant having presented his case last, the court joined this matter to the facts of the case.
The president, after having asked the parties (the defendant having addressed the court last) their opinion on the benefit to the court were it to view itself the cameraman’s rushes, decided that the court would deliberate the issue and announced the court’s decision at the public hearing of October 3, 2007.
THE OCTOBER 3, 2007 JUDGMENT OF THE 11TH CHAMBER
By judgment rendered after due hearing of the parties on October 3, 2007, the court:
Accepted Philippe KARSENTY’s appeal
Before deciding the case
Ordered supplementary information, ordering FRANCE 2 to submit, before October 31, 2007, the rushes filmed September 30, 2000, by its cameraman Talal ABU RAMAH and charged Irene CARBONNIER, counselor, with this proceeding.
Scheduled hearings on November 14, 2007, January 16 and February 27, 2008.
At the hearing of November 14, 2007, the court, in the presence of the defendant and the civil parties, all represented by counsel:
Viewed the rushes filmed on September 30, 2000, by FRANCE 2’s cameraman, Talal ABU RAMAH, submitted as required by FRANCE 2,
Scheduled a hearing on January 16, 2008, and on February 27, 2008, for oral arguments.
At the public hearing of February 27, 2008, the president noted the identity of the defendant, who appeared represented by counsel, who filed submissions with the president and the court clerk, which are included in the case file, requesting that Jean-Claude SCHLINGER, an expert on arms and munitions with the Paris Court of Appeals accredited by the Court of Cassation, be heard as a witness.
The attorneys for the civil parties, Charles ENDERLIN, who was present and assisted by counsel, and the National Television Company FRANCE 2, represented by counsel, filed submissions with the president and the court clerk, which are included in the case file;
On the issue of hearing the witness, the court heard:
Attorney Patrick MAISONNEUVE and his arguments,
Attorney Francis SZPINER, and his arguments,
Mr. BARTOLI, attorney general, and his arguments,
Philippe KARSENTY addressed the court last.
The court suspended the hearing to deliberate this issue and, at the resumption of the public hearing, rejected the petition to hear the witness.
On the issue of the defendant’s petition to view a new CD, the court heard:
Attorney Patrick MAISONNEUVE and his arguments,
Attorney Francis SZPINER, and his arguments,
Mr. BARTOLI, attorney general, and his arguments,
The court suspended the hearing to deliberate this issue and, at the resumption of the public hearing, accepted the petition to view the CD.
Mrs. CARBONNIER made an oral report;
ON THE MERITS OF THE CASE, THE COURT HEARD:
Philippe KARSENTY, defendant, and his arguments;
Charles ENDERLIN, civil party, and his arguments;
Attorneys Benedicte AMBLARD and Francis SZPINER, their arguments and pleadings;
Attorneys Patrick MAISONNEUVE and Delphine MEILLET, their arguments and pleadings;
Philippe KARSENTY, again, who addressed the court last.
Then the court scheduled deliberations for May 21, 2008.
On that date, at the public hearing of May 21, 2008, the president read the judgment, whose contents follow, as required by articles 485 and 512 of the code of criminal procedure, in the presence of the Public Minister and the court clerk, Mrs. DU PARQUET.
Considering that, following the complaints and the filing of civil actions by the National Television Company FRANCE 2 and Charles ENDERLIN, the examining magistrate summoned Philippe KARSENTY before the criminal court of Paris to answer charges of public defamation of another based on several passages in a press release issued on November 22, 2004, and of an article published online on November 26, 2004, on the website www.M-R.fr by the Media-Ratings company entitled “FRANCE 2: Arlette Chabot and Charles ENDERLIN should be removed from their positions immediately”;
Considering that, before the court, Philippe KARSENTY’s attorney, whose appeal was declared admissible, announced his withdrawal of the exceptions regarding voiding his summons, and his decision not to invoke the lack of publicity of the publication at issue, which was addressed to the subscribers of MEDIA RATINGS; that he seeks the invalidation of the judgment, discharge, on the grounds of good faith, and the dismissal of all of claims by Charles ENDERLIN and FRANCE 2, the civil parties.
Given that the attorney general requested the court uphold the judgment;
Given that counsel for the civil parties argued for the court to reject exhibits numbered 43 through 73, which Philippe KARSENTY did not prove having had knowledge of at the time of the facts at issue, and for the court to uphold the judgment and sentence the appellant to pay each of them the sum of 20,000 € based on article 475-1 of the code of criminal procedure:
Considering that the case file and the hearings establish:
I. About the events of the fall of 2000, that:
• On September 30, on FRANCE 2’s 8:00 p.m. news, Arlette CHABOT announced “ confrontations and an unprecedented wave of violence that has resulted in 15 dead and 500 wounded Palestinians on Saturday” in Israel and in the Palestinian territories after the visit in Jerusalem by Ariel SHARON, president of the opposition; that the announcer illustrated this information with a report 57 seconds long, by Charles ENDERLIN, permanent correspondent for FRANCE 2 in the Middle East, who related the exchange of live gun fire at an intersection near the Israeli settlement of Netzarim in the Gaza Strip, and showed a scene during which one saw a father attempt to protect his twelve-year old son, Mohamed AL DURA; that Charles ENDERLIN narrated the images in the following way:
“Three p.m. Everything has just erupted near the settlement of Netzarim, in the Gaza Strip. The Palestinians have shot live bullets, the Israelis are responding. Emergency medical technicians, journalists, passersby are caught in the crossfire. Here, Jamal and his son Mohamed are the target of fire from the Israeli positions. Mohamed is twelve, his father is trying to protect him. He is motioning …
“Another burst of fire. Mohamed is dead and his father seriously wounded. A Palestinian policeman and an ambulance driver have also lost their lives in the course of this battle.”
• On October 1, FRANCE 2 recaps these events with the voice of Charles ENDERLIN, who invokes Mohamed, “a 12-year-old child whose tragic death was filmed by Talal Abu Ramah, FRANCE 2’s correspondent in the Gaza Strip,” and reports the release of an Israeli Army statement “regretting the loss of human lives and claiming that it is impossible to determine the origin of the fire;”
• October 2, FRANCE 2 specifies that the scene showing “the inadmissible” broadcast with commentary by Charles ENDERLIN, was filmed by its cameraman and soundman, Talal ABU RAMAH, who, on the air, claims that he is “sure that the shots came from the Israeli side;”
• On November 27, FRANCE 2 broadcast a report by Charles ENDERLIN according to which the military investigation led by Gen. SAMIA, head of the Southern Command, concluded that it was “more probable that the child had been killed by the Palestinians than by the Israelis;”
• On November 28, FRANCE 2 and Charles ENDERLIN nevertheless commented that “several points of the Israeli theory conflict with the facts collected at site,” as well as with the testimony of the doctor who examined the child’s body;
II. About the facts as of 2002, that:
• During March 2002, the German television station ARD broadcast a documentary by Esther Shapira, entitled Who Killed Mohamed Al-Dura? which emphasizes the lack of material evidence, specifically of evidence that could determine the source of the shots and the lack of a thorough autopsy on the child;
• On October 2, 2002, Esther SHAPIRA’ film is shown on a giant screen to one thousand people gathered before the offices of FRANCE TELEVISION and a “Prize for Disinformation” is symbolically awarded to FRANCE 2 and Charles ENDERLIN by the organizers of the demonstration;
• In November 2002, the Franco-Israeli press agency MENA produces a twenty-minute-long documentary entitled Al-Dura – The Investigation that, based on comments by Nahum Shahaf, a physicist who participated in Gen. Samia’s investigation, casts doubts as to the authenticity of the scenes filmed by the FRANCE 2 cameraman, and concludes it was a “real set up, performed by actors.”
• In January 2003, MENA’s permanent correspondent in Paris, Gerard Huber, publishes Contre-expertise d’une mise en scène, a work that adopts the theory of the above-mentioned documentary, in whose production he had participated;
• On October 22, 2004, FRANCE 2 and its Arlette CHABOT, invite three journalists who had made critical comments – Daniel LECONTE (ARTE), Denis JEAMBAR (L’EXPRESS), and Luc Rosenzweig, (formerly of Le Monde) – to view the 27 minutes of rushes from September 30, 2000;
• On November 18, 2004, FRANCE 2 organizes a press conference during which it presents photographs of the wounds suffered by Mohamed Al Dura;
Considering that, on November 22, 2004, the Media-Ratings company publishes on its website, www.M-R.fr, an article entitled “FRANCE 2: Arlette Chabot And Charles ENDERLIN Must Be Removed From Their Positions,” whose excerpts contested by the civil parties, underlined when they refer only to Charles ENDERLIN, are as follows:
“The principles of accuracy, objectivity, transparency and responsibility of the PHILTRE method have been repeatedly violated by FRANCE 2 in its broadcast of the faked death of Mohamed Al Dura on September 30, 2000.”
“Preliminary notices […]
“At least two members of the government of M. Jean-Pierre RAFFARIN and many journalists are aware that FRANCE 2 broadcast a false report on September 30, 2000.
It would be good if they would reveal themselves, in order to put a stop to this masquerade.” […]
“We hope that the Conseil Superieur de l’Audiovisuel will demand the immediate resignation of those who participated in this hoax.”
“Given the evidence in our possession, we maintain that FRANCE 2’s correspondent in Jerusalem, Charles ENDERLIN, did, indeed, broadcast a false report on September 30, 2000.”
“Following are the inconsistencies in FRANCE 2’s document:
From the very beginning of the report, we notice that we are viewing a series of scenes being acted out […] this first scene is pure fiction […]
“Charles ENDERLIN, as it happens, is mistaken and, at the same time, misleads us. Why?
“Could he be trying to cover up his hoax?”;
Considering that, on November 26, 2004, Media-Ratings sends to all the subscribers to its distribution service, including FRANCE 2, an electronic press release whose passages at issue are the following:
“Given the evidence in our possession, we maintain that FRANCE 2’s correspondent in Jerusalem, Charles ENDERLIN, did, indeed, broadcast a false report on September 30, 2000.
“We invite you to learn more about the inconsistencies in FRANCE 2’s document, as well as the reactions of certain media to this hoax, on Media-Ratings.
“Arlette Chabot has threatened to file suit against any person who would accuse FRANCE 2 of having broadcast a lie on September 30, 2000 […]
“We hope that the Conseil Supérieur de l’Audiovisuel will demand the immediate resignation of those who have participated in this hoax. […]
“We hope that the French media will rapidly inform their readers, listeners, and viewers of the media fraud FRANCE 2 has engaged in for more than four years […]
Considering that these facts as a whole establish that Philippe KARSENTY, director of the watchdog agency MEDIA-RATINGS, which he created in order to evaluate the reliability of information published in the press, questions the work of FRANCE 2 and its correspondent in Jerusalem, with the aide of methodological criteria he has designed to analyze the media;
Given that in his article dated November 22, 2004, Philippe KARSENTY characterizes Charles ENDERLIN’s report as a masquerade dishonorable to public television and a hoax that caused much violence throughout the world, recalling the details of the controversy he had been inciting for several years between FRANCE 2 and the Israeli press agency MENA (“Metula News Agency”), which accused the French channel of having broadcast a hoax;
Given that based on the evidence he has at the time, the defendant claims that the Paris correspondent in Jerusalem made a false report, which he exposes by criticizing two points: for one, the 50 first minutes of the report consist of a series of staged scenes that are pure fiction, and secondly, the main scene, only a few minutes long, contains some inconsistencies with regard to FRANCE 2’s commentary;
Given that, from then on, he questions the reasons why Charles ENDERLIN, who, on this point, “is mistaken and, at the same time, misleads us,” seeks to “cover up his hoax”;
Given that the prosecuted author, in his release of November 26, 2004, accuses Charles ENDERLIN of having broadcast a false report by narrating an incoherent document submitted by his cameraman, and the public channel of having perpetrated a media hoax by broadcasting it on September 30, 2000;
Considering the defamatory character of these accusations, that the court correctly considered the act of deliberately fooling the public and disseminating and/or causing to be disseminated a false report consisting of images that do not reflect reality, by showing a “fake death”, even if the author took the trouble of qualifying his accusations with a certain number of explanations, indisputably impugns the honor and reputation of information professionals, all the more so when the defamatory act is emphasized by the use of terms such as “masquerade,” “fraud,” “hoax” to describe FRANCE 2’s attitude and “staged scenes” and “pure fiction” to describe the first episode of the report;
Considering that, in regards to the evidence produced in support of the truth of the defamatory statement, the appellant submitted fourteen pieces of evidence and requested the court hear three witnesses capable, according to him, of proving that FRANCE 2 had brought to the screen a suspect production, widely criticized at the time the comments at issue were broadcast, which allowed him to conclude that the report on the conditions of the filming and the veracity of the scenes filmed by its cameraman – especially the death of little Mohamed AL DURA – had been manipulated.
But considering that, as the first judges noted, in order for the exculpatory effect of article 35 of the law of 29 July 1881 to apply, the proof of the truth of the defamatory statements must be perfect, complete and must correlate to the defamatory accusations in their materiality and their breadth;
Given that by claiming the evidence he submitted established a “suspect production, widely criticized at the time the statements at issue were broadcast,” the defendant cannot claim to have proven the act of having deliberately broadcast a “false report,” since the former is less severe than the defamatory accusation at issue;
Considering that, therefore, the truth exception raised by the defendant must be rejected;
Considering that, on appeal, Philippe KARSENTY essentially invokes good faith to justify the publication of the statements at issue;
Considering that – while it is true that the criteria of good faith must, as noted by the first judges, be evaluated differently according to the type of written comment, the character of the author, and, notably, with greater scrutiny when the defendant’s profession is to inform, or, as in this case, to scrutinize the media – it is indisputably legitimate for a media watchdog agency to investigate, be it only due to the impact that the criticized images had throughout the world, the conditions in which the report at issue was filmed and broadcast, and to bring the results of this investigation to the public’s knowledge, as well as to submit them to professionals for examination.
Considering that Philippe KARSENTY tackles topics of general interest, such as the work practices of the media, and specifically, of the public broadcast authority, the power of images, and the relevancy of live commentary, based on the public’s right to serious information – which gives the publication of his research all its legitimacy – Charles ENDERLIN can even less so evade the criticism, given that it targets him as an information professional and as the correspondent in Israel and the Palestinian territories for FRANCE 2’s televised prime-time news; in this position he inevitably and knowingly exposes himself to more careful scrutiny of his comments and actions by his co-citizens, as well as by his colleagues.
Considering that, to prove the seriousness of his investigation, Philippe KARSENTY submits, besides the testimony of Luc ROZENZWEIG, Gerard HUBER, Francis BALLE and Richard LANDES, who figure in the court transcript of the hearing, the evidence produced at the trial below, as well as new exhibits numbered 43 through 73, whose essence, based on the report by FRANCE 2, do not refer to events after the publication of the statements at issue; and that it is appropriate, in this context, to evaluate the validity of the defendant’s investigation, based, not on the grounds of the defamatory statement’s demonstrable veracity, but on the value and the variety of sources used, as well as the relevance of their content;
Considering that, as pointed out by the lower court, Philippe KARSENTY’s investigation raised two major types of criticism against the report: that Charles ENDERLIN wrongly presented the fatal shots as deliberate and coming from the Israeli positions, and that the images of the young Mohamed AL-DURA’s death are fictitious and do not correspond to what the journalist reported;
Given that the author of the statements at issue essentially relies on the inexplicable inconsistencies of the viewable images – even, according to him, in the main scene; on the lack of probative value of the photographs of Jamal AL DURA’s wounds, submitted by FRANCE 2; and finally on the contradictory answers given by Charles ENDERLIN to the questions relating to the editing of the film, and those of his cameraman on the issue of the sequence of the scenes and the conditions under which they were filmed;
Considering that it is determined that Charles ENDERLIN did not witness the events that he commented on in “off-screen narration” – a procedure that is in no way contrary to the journalistic code of ethics, as long as that is understood by the viewers to be the case; that in this instance, FRANCE 2 pointed out on October 1, 2000, that the death of the child had been “filmed by Talal Abu Ramah, [his] correspondent in Gaza” and on October 2, that the cameraman “had filmed the unacceptable,” which did not necessarily lead one to deduce that the commentator was not at the scene; that this fact led Philippe KARSENTY – without being thus able to deduce that the events reported were false – to question the concordance between the images chosen by the Palestinian cameraman (“It’s I who decides what is important,” we hear him say in one of the interviews), and Charles ENDERLIN’s commentary on these images.
Given that, while it is true that the authors of the two videos (exhibits no. 1 and 2), one produced on the initiative of Esther SHAPIRA for the ARD television channel in March 2002, the other, Al-DURA: The Investigation, produced the following November by MENA based statements by Nahum SHAHAF, who was appointed to head a commission of inquiry ordered by the head of the Southern Command, do not come to the same conclusions after studying the report, since the former attributes the child’s death to a stray Palestinian bullet, while the latter claims the Palestinians staged this death;
It is immaterial that these theories are contradictory, only that the two documents lead the defendant, in successive stages, to question FRANCE 2’s report and the veracity of the events reported by information professionals;
Given that the theory put forth by MENA, which is the subject of the book by Gerard HUBER published in January 2003, Contre-expertise d’une mise en scène (exhibit No. 3), infers – from the fact that we see young Palestinians taking advantage of the presence of cameras to play out war scenes and act as if wounded – that the death of young Mohamed AL-DURA was fictitious, and which is adopted by Philippe KARSENTY, relies on FRANCE 2’s persistent reluctance to allow the viewing of its cameraman’s rushes; on Charles ENDERLIN’s imprudent claim that he edited out the images of the child’s agony, and on statements made by several journalists who did see the rushes;
Given that, indeed, the testimony by Luc ROSENZWEIG, former chief editor of MONDE, established that after having met, in May 2004, some colleagues who shared with him their doubts about Charles ENDERLIN’s commentary, and having thereafter himself shared these doubts with Denis JEAMBAR and Daniel LECONTE, on October 22, 2004, he viewed with them FRANCE 2’s rushes and was surprised that, of the 27 minutes of Talal ABU RAHMA’s rushes, more than 23 minutes of the scenes on film had nothing to do with the images broadcast by the station, including those of little Mohamed’s death, and consisted of young Palestinians faking war scenes. The witness concluded his testimony at the hearing in the lower court by stating his conviction that “the theory that the scene [of the child’s death] was faked was more probable than the version presented by FRANCE 2,” while admitting that, as a journalist, journalistic “criteria did not allow him to go further than that.”
Given that this testimony is confirmed by the opinions, essentially corroborative, of Daniel LECOMTE and Denis JEAMBAR, put forth in an editorial in the Figaro of January 25, 2005 (exhibit No. 16), and an interview broadcast February 1, 2005, by RCJ television (exhibit No. 4);
Given that, in these, the two journalists unambiguously stated they had told Arlette CHABOT their “serious doubts”, but that they were ready to “disregard the accusations by ROSENSWEIG about the child’s death having been staged if viewing the whole set of rushes filmed by Talal ABOU RAMA confirmed what Charles ENDERLIN claimed on at least two occasions – including once to Telerama: “I edited out the child’s agony. It was unbearable … It would not have added anything”; and – after having seen the rushes – that “this famous ‘agony’ that ENDERLIN claims to have edited out of the film does not exist”;
Given that they also noted that, “in the minutes preceding the shooting, the Palestinians seem to have organized a stage […] ‘play’ war with the Israelis and simulate, in most of the cases, imaginary wounds” and that viewing the entire set of rushes shows that at the moment Charles ENDERLIN declares the child dead […] nothing allows him to suggest that he really is dead and even less so that he was killed by Israeli soldiers. According to them, FRANCE 2’s journalists assured them at the time they viewed the rushes, that “their experts had even determined […] that the child had been hit by shrapnel (?) or by bullets that ricocheted off the pavement, bullets that, in any case, were not aimed at the child nor his father”;
Given it is true that, while noting that their colleague should admit that he “extrapolated based on the rushes and the version of the events provided by his cameraman,” and that comments on Israeli barbarity “had nothing to do” with the images that went around the world, Denis JEAMBAR and Daniel LECOMTE refuse to adopt the theory that the child’s death was staged; that they base this on the film by Talal ABU RAMAH released by FRANCE 2 on November 18, 2004, to show that the father’s wounds corresponded exactly to the bandages he had the next day at the hospital in Gaza, without noting the possibility of a discrepancy between the photos that were shown to them and their own observation that, in the rushes, “the father wears a T-shirt on which one sees no trace of blood”;
Considering that Richard LANDES, journalist and professor at Boston University, whose testimony was heard by the first judges, testified that, according to him, after having studied the rushes by Reuters and the commentary by Charles ENDERLIN, with whom he discussed the issue, the probability that the child’s death ENDERLIN reported was staged, was “greater than 95%.”
Considering that, if none of the defendant’s arguments – neither the conclusions of the investigation carried out on the personal initiative of Gen. SAMYA (defense exhibit No. 12), nor the “imprudent statement” by Charles ENDERLIN quoted above – seemed to the judges below to be sufficiently determinative in regards to the contested commentary, it is apparent that examining, on appeal, the 18 minutes of Talal ABU RAMAH’s rushes produced by FRANCE 2 does not permit dismissing the opinion of the professionals who were heard by the court during the proceedings or who participated in the debates, and the statements procured by the cameraman (counter-evidence exhibit nos. 5 to 10), on the other hand, cannot be found truly credible neither in their presentation nor in their substance;
While no principle permits refusing to grant, without any analysis nor explanation, any credit to a document that does not have the benefit of an official label, or that is accorded little credit by the “authorities”, it must be noted that the first statements by Israeli authorities – notably those of Gen. EILAND, were made upon seeing only the images of FRANCE 2’s report; that it is, furthermore, known – as was explained by Denis JEAMBAR et Daniel LECOMTE – that the Israeli Army almost never comments on anything, “this was the communication choice it made”;
Considering that, in responding to Denis JEAMBAR and Daniel LECOMTE in the Figaro of January 27, 2005, that “the image corresponded to the reality of the situation, not only in Gaza, but also in Trans-Jordan,” – despite the fact that by definition a report is understood to be the testimony of what a journalist has seen and heard – Charles ENDERLIN admitted that the film, which was seen around the world and sparked unprecedented violence in the entire region, perhaps did not correspond to his commentary, which is also the opinion submitted by Daniel DAYAN, director of research at CNRS and an expert on the media, in his testimony (exhibit No. 5);
Considering, on the issue of the cautiousness of the statement, it must be emphasized that the limits of admissible criticism are that much broader when the subject is of public interest and the accusations are supported by an accumulation of investigative facts, and even more broad with respect to those who, by their position or activities, are in the public sphere;
It is in this context we should understand the statement by Francis BALLE, professor at the University of Paris II, an expert on images and information, who testified before the court that it did not seem to him that, in the course of practicing his profession, Philippe KARSENTY had “crossed the red line” by using the terms at issue to discuss a subject of public interest;
That while it is true that the repeated use of the expression “false report,” emphasized by terms such as “staged scene”, “masquerade,” “hoax” and “fraud” give the statements at issue an essentially critical, negative nature, and with the term “faked death” even a provocative one, a more thorough reading of the online article, succinctly repeated in the press release, whose overall tone is tough, shows that the author explains vehemently, but without real outrage, why the public channel deserved his criticism, based on his agency’s grading criteria;
That, indeed, the defendant recalls the events, explains the controversy, notes that MENA accuses the French station of fraud, before providing his own analysis and his conclusion; that, in this context, he characterizes the first episode as pure fiction, which is also supported by several major media and information figures who saw the rushes in October 2004; that he then explains, regarding the main scene, in which he observed inexplicable inconsistencies and contradictions in the explanations of the child’s death provided by Charles ENDERLIN, that the latter is mistaken – which amounts only to impugning him of a simple error – and “at the same time”, fools the public – which appears to be an euphemism; that, by concluding the article by questioning the reasons for “seeking to cover up this hoax,” Philippe KARSENTY broaches the crux of the issue with an intensity of expression that the importance of the debated question must surely allow;
Considering that personal animosity toward the civil parties was not proven by submitting two depositions, one from Rene BACKMANN, the other from Francois RAIGA-CLEMENCEAU, both subsequent to the investigation carried out by Philippe KARSENTY, whereas the substance of the article and the press release by the director of the media watchdog agency does not reveal any personally hostile feelings toward Charles ENDERLIN and FRANCE 2;
Considering the state of the elements of the investigation, which form a factual base sufficient to allow that the statements at issue, often close to a judgment call, could have been made by the author of the article and the press release at issue to discuss subjects of such general interest as the danger of power – in this case, the power of the press – in the absence of counterbalance, and the right of the public to serious information; it can be found that Philippe KARSENTY exercised his right of free criticism in good faith; that, in doing so, he did not overstep the limits of the freedom of expression recognized in article 10 of the European Convention on Human Rights, which applies not only to information or ideas that are met with favor or considered inoffensive or insignificant, but also to those that offend, shock or disturb;
That the decision of the lower court will therefore be overturned; the charges against Philippe KARSENTY and the demands of the civil parties dismissed;
ON THESE GROUNDS
By judgment rendered after due hearing of the parties and after having deliberated according to the law;
In view of the interlocutory order of October 3, 2007;
Declares no objection to the pleadings submitted by Philippe KARSENTY;
Overturns the deferred judgment and dismisses the charges against Philippe KARSENTY;
Dismisses the demands of the civil parties.
THE PRESIDENT THE COURT CLERK