Today, the imagination of offenders is combined with the rise of social networks to invent new threats. Faced with these, it is useful to put the qualification respectively threats of libel (1), offenses under the 1881 Act on Freedom of the Press (2) and the limits of the crime of usurpation of civil status (3). The tort of invasion of privacy can also be used to defend his e-reputation (4).
1) Extortion, blackmail and threats of defamation
Extortion and blackmail have a common goal: to drive the victim to hand over the guilty thing he covets. It can be any property but in particular to obtain a signature, a commitment, a waiver or disclosure a secret.
The material element of extortion may consist of moral violence. The judge actually appreciates the decisive nature of the means used to achieve remission, particularly taking into account the age and physical or mental condition of the victim.
Blackmail is extortion a variety particularly suited to the context of social networks.
The blackmailer uses in this case the threat to reveal or to charge through social networks of the victim, the facts of nature to prejudice his honor or his consideration.
Networks social support are ideal for such revelations or accusations.
Under the guise of anonymity, or impersonating another person, what's easier than joining a social network and will dump trucks with gall?
The "friends" of the victim are usually numerous enough that the damage is considerable!
The threat is particularly likely and likely to impress the victim. Particularly when it is already destabilized. It may be a contentious divorce, but also difficulties with the IRS or his employer ... No is really safe.
The Penal Code, however, allow victims to defend themselves effectively for several reasons.
First, the crime of blackmail is punished with severity: five years imprisonment and 75,000 euros fine.
Secondly, the blackmailer can not rely on the exceptio veritatis, ie to defend itself by relying on the truth of the facts he threatened to reveal.
Thirdly, attempted blackmail is in itself punishable. So even if the victim does not yield to threats, the blackmailer is punishable by five years imprisonment and 75,000 euros fine.
2) The offenses under the 1881 Act
The criminalization of blackmail should it be preferred to those provided by the 1881 law on freedom of the press, such as defamation and insult?
The answer depends on the facts of the case.
In the absence of threat, the crime of blackmail is not made: only the criminal laws under the 1881 Act will apply in case of violation of the honor and consideration.
However, being a law favoring freedom of expression, it gives only limited protection to the victim.
First, defamation (or injury) is likely to be considered private rather than public, so that the penalty is relatively light.
Secondly, the head of the publication can invoke various defenses, including the exceptio veritatis.
Thirdly, the special procedure is far more complex than that provided by the law of criminal procedure.
Fourth, the period of limitations is three months, thus particularly brief.
Ultimately, the outcome is not favorable for the victim who wishes to claim the 1881 law to fight against an attack on his reputation through social networks.
3) The boundaries of the crime of usurpation of civil status
However, the victim can she find the energy of the general criminal law by invoking the crime of usurpation of civil status?
Often, the revelation of defamatory facts is carried out under an assumed name and it is tempting to see this as a defense. But such an act is not punishable as such.
Under section 434-23 of the Penal Code, it is necessary that the loan to intervene in circumstances which have led or could determine criminal proceedings against the person whose name was borrowed.
The crime of usurpation of civil status is essentially a crime enhancement, which adds to a first offense. Its effectiveness is therefore limited.
4) The tort of invasion of privacy
Article 226-1 of the Penal Code punishes the act of voluntarily bring harm to the privacy of the privacy of others.
In the absence of consent, constitute a crime recording words spoken in a private or confidential as the image recording of a person in a private place.
It is therefore possible to continue on this basis that any attacker would record such words or images on a social network.
The effectiveness of the offense is limited because it does not defend himself when the facts have occurred outside the private sphere or when they are "invented" evil purposes.
In summary: The
Criminal law has several texts to protect their e-reputation when it is achieved through social networks. However, this protection must be based on a case by case, depending on the context. The crime of extortion emerges as the preferred means of defense in the presence of a reputation through social networks. It is also necessary that the damage had been preceded by threats and has the aim of obtaining a material benefit.
Whilst the case is still uncertain, the exponential growth of future e-victims remains a certainty, as well as that of the complaints, at the risk of saturating the Legal Department!
Michael Pasotti - Lawyer at the Paris Bar - Doctor of Economics - Paris December 26, 2009
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