Background
M. [Q] [A], a lawyer, brought a private prosecution against Mmes [I] and [O] [P] for non-public defamation arising from two emails sent during a dispute over his fees. The first, sent by Mme [O] [P] to the lawyer representing M. [A], stated that she would defend herself and pursue the matter so that everyone would know what M. [A] was and what he had done “to con and defraud us.” The second was sent by a judicial officer to M. [A]’s lawyer and alleged professional and ethical failings.
The police court acquitted Mme [I] [P] on both alleged offenses and acquitted Mme [O] [P] regarding the second email. It convicted Mme [O] [P] over the first email, fined her €38, and ruled on the civil claim. After appeals by the two defendants and the prosecution, the Paris Court of Appeal acquitted Mme [O] [P] of the remaining charge and dismissed M. [A]’s claims. M. [A], acting as the civil party, appealed to the Court of Cassation.
The Court’s Holding
The Court of Cassation dismissed the appeal. It held that when allegedly defamatory statements about one person are sent privately to a third party, non-public defamation proceedings may be brought only if the communication was made under circumstances excluding confidentiality. Because that requirement restricts freedom of expression, opinion, and correspondence, it must be interpreted strictly.
The disputed email retained the confidentiality inherent in private correspondence. Its language showed that Mme [O] [P] was expressing to opposing counsel her view of the action against her and her intention to defend herself, but did not establish—without adding an interpretation—that she wanted the email communicated to M. [A]. Addressing the message to the lawyer representing him was insufficient to prove such an intention, and the lawyer’s later decision to forward it did not alter its original confidential character.
The Court clarified that the statutory rule governing an attorney’s professional secrecy protects attorney-to-attorney and attorney-client correspondence, not a party’s direct message to opposing counsel. That distinction did not affect the result, however, because the Court of Appeal had not relied on that statute and had correctly found the email confidential as private correspondence. The absence of a “confidential” marking was immaterial.
Key Takeaways
- Allegedly defamatory statements about someone other than the recipient are punishable as non-public defamation only when they were sent under circumstances excluding confidentiality.
- Sending a private email to an adversary’s lawyer does not, by itself, prove that the sender intended the lawyer to disclose it to the client.
- A recipient’s later forwarding of an email—and the absence of a “confidential” label—does not eliminate the communication’s original confidential character.
Why It Matters
The ruling draws a careful line between an attorney’s statutory professional secrecy and the broader confidentiality attached to private correspondence. Even where a message falls outside the statutory attorney-secrecy regime, it may remain confidential enough to preclude a non-public defamation charge.
For lawyers handling contentious correspondence, the decision makes the sender’s demonstrated intent to disseminate the remarks critical. Neither the recipient’s role as opposing counsel nor the recipient’s later disclosure to the client is sufficient on its own. The Court also ordered M. [A] to pay Mme [O] [P] €2,500 under Article 618-1 of the Code of Criminal Procedure.