PublishingontheInternet

30 January 2003

Sylvie de Oliveira

Following a decision of the Court of Appeal of Colmar on 3 September 2002

In this recent case, the Court held that, without specific legal prohibition or regulation regarding the publishing of a Court decision, such publication is free. Thus, the right to disclose a Court decision is admitted in France. But, such right is subject to the opinion of the Court, on a case by case basis.

Generally, French Case Law considers that such publishing constitutes a disparaging act.

The Facts

Company W obtained a summary of an injunction order and then disclosed this decision on its website. Company M convinced the judges of first instance that this disclosure constituted a disparaging act against it. The Court of Appeal decided the matter differently.

1. Two statements

Uselessness of a Court authorisation.

The Court of Appeal applied the principle according to which law is public in France and that therefore (excluding exceptions) "Court decisions can be disclosed and each party has the right to publicise a decision that was delivered with regards to it".

Therefore, the absence of a Court authorisation to disclose a Court decision is inoperative according to the Court of Appeal.

Indifference regarding whether the decision is definitive or not.

In this particular case, the decision disclosed on the website by Company W was not a judgment on the merits of the case and was not even definitive. It was merely a simple summary of an injunction order that, in addition, was under appeal.

2. Requirements for the spontaneous publishing of a Court decision

In the matter decided by the Court of Appeal of Colmar, Company W had only partially reproduced the decision and corrected (in addition) material errors. The Court of Appeal held that it was not possible to deduce proof of Company W's intention to harm Company M through such a reproduction.

3. The limits of spontaneous publishing of a Court decision on a website.

The Court of Appeal's decision has defined two legal grounds upon which an organisation can rely if it wishes to oppose publication: misuse of law and act of unfair competition.

Misuse of law

To prove misuse, one would need to prove (i) the obvious nature of the evil intent and (ii) the resulting damage suffered.

Act of unfair competition

In this case Company M maintained that Company W tried to misappropriate Company M's clientele by publishing the Court decision in order to disparage it. Therefore, the plaintiff asserted that such publishing constituted unfair competition. But the Court of Appeal considered that the plaintiff should have establish, with sufficient likelihood:

  • The existence of a competitive relationship between the two companies (the exercising of the same activity by the two companies, the existence of the same clientele of the two companies);
  • The existence of an unfair competition act (disparaging act, clientele misappropriation…); and
  • Resulting damages.

4. Conclusion – Recommendations

In conclusion, this decision sheds light on the factors that must be taken into account when one intends to disclose a Court decision. In the light of the decision, the following precautions should be taken: (i) only reproduce part, (ii) use initials instead of the parties names, (iii) do not mention whether or not an appeal has been lodged and (iv) do not further comment.