A letter sent to the public prosecutor, a report passed to the labour inspectorate: sometimes all it takes is a false accusation, made by a former business partner or an employee, to expose an executive or a company to an investigation, to being placed under formal investigation (mise en examen) and to damage to their reputation. Where such an accusation is untrue and its author knows it, it may amount to malicious denunciation (dénonciation calomnieuse). In this article, I set out:
- the definition of this offence,
- concrete examples in a professional context, and
- how a complaint for malicious denunciation is put together.
Malicious denunciation: what does article 226-10 of the French Criminal Code say?
What is the definition of malicious denunciation in the French Criminal Code?
Article 226-10 of the Criminal Code defines malicious denunciation as “the denunciation, made by any means and directed against a specified person, of a fact which is liable to give rise to judicial, administrative or disciplinary sanctions and which is known to be wholly or partly inaccurate, when it is addressed either to a judicial officer or to an administrative or judicial police officer, or to an authority with the power to act on it or to refer the matter to the competent authority, or to the hierarchical superiors or the employer of the person denounced”.
This offence differs from defamation (diffamation) and insult (injure) on one specific point: it targets the exposure of the person denounced to sanctions, and not merely harm to their honour or reputation. It is this purpose, triggering a sanction against another person on the basis of a fact known to be false, that justifies severe punishment, namely five years’ imprisonment and a fine of 45,000 euros.
What are the constituent elements of malicious denunciation?
For malicious denunciation to be established, several conditions must be met:
- The denunciation may be made by any means, whether written or oral, by letter, email, complaint or online report.
- It must be spontaneous, that is, it must stem from a free initiative and not from a compelled response to questioning or from the performance of a legal reporting obligation.
- The denunciation must target a specified person, even if not named provided that the person is identifiable, and must concern a fact liable to give rise to judicial, administrative or disciplinary sanctions.
- It must be addressed to an authorised recipient: a judicial or police officer, an authority with the power to act on it or to refer the matter to the competent authority, or the hierarchical superiors or the employer of the person denounced.
- It must concern a fact liable to give rise to sanctions that are judicial, administrative or disciplinary.
- The fact concerned must be false or presented in a misleading way (for example by distorting or exaggerating it).
- The author must know that the fact denounced is false.
Examples of malicious denunciation in a business setting
The following illustrations help to define more clearly the situations in which malicious denunciation may be found to exist.
Malicious denunciation: the executive targeted by a false corruption report
A former business partner sends the public prosecutor a letter accusing the executive of a company of corruption and misappropriation of funds. An investigation and then a judicial investigation (information judiciaire) are opened, the executive is placed under formal investigation, and the proceedings end with a final dismissal of the case (non-lieu) declaring that the acts were not committed. The voluntary letter sent to the public prosecutor establishes spontaneity and constitutes a denunciation within the meaning of article 226-10. If the executive demonstrates that the former partner knew the accusations were false, for example because that partner held the correct accounting records, the offence may be made out.
Malicious denunciation between competitors: the false report circulated on the internet
The offence may target a legal person. Unlike the former article 373, which referred to “one or more individuals”, article 226-10 speaks of a “specified person”, a notion that covers companies (Crim. 22 juin 1999, n° 98-80.593). Thus, a company that circulates on the internet a false expert report stating that a competitor’s product causes serious injuries, and that sends that report to a health agency in order to obtain the withdrawal of the product, may be caught by malicious denunciation. This case corresponds to the matter of a laboratory that filed a complaint after the online circulation of a false report disparaging an ophthalmic product (Crim. 15 janv. 2008, n° 07-86.944).
Malicious denunciation at work: the employee who wrongly accuses his or her employer
An employee who writes to the head of human resources and to the labour inspectorate to accuse a superior by name of psychological harassment (harcèlement moral) makes a denunciation directed against a specified person, addressed to a hierarchical authority and to a competent administrative authority. Malicious denunciation of psychological harassment may give rise to prosecution under article 226-10 (Crim. 26 juin 2007, n° 06-84.135). It must nevertheless be established that the employee knew the accusations were false at the time of the denunciation (Soc. 5 déc. 2007, n° 06-41.267). The mere fact that an investigation concludes that there was no harassment is not enough to establish the offence.
Malicious denunciation and legal reporting obligation: the case of the professional
A judicial representative (mandataire judiciaire) who sends the public prosecutor a report containing erroneous assessments of an executive’s management is acting in performance of a legal reporting obligation. In that case, the case law considers that the denunciation is not spontaneous, and the absence of spontaneity rules out the classification of malicious denunciation, regardless of whether the facts reported are inaccurate (Crim. 16 oct. 1969, Bull. crim. n° 254 ; Crim. 9 janv. 1986). The executive may then look to other grounds, such as civil liability, but not to the criminal penalty of article 226-10.
How to file a complaint for malicious denunciation?
When to file a complaint for malicious denunciation?
Malicious denunciation is an instantaneous offence (infraction instantanée), complete on the day the denunciation reaches the competent authority.
The victim may file a simple complaint (plainte simple) with the public prosecutor, then, where appropriate, a complaint with civil-party application (plainte avec constitution de partie civile), which makes it possible to set the public prosecution in motion and, if a trial took place, to seek redress.
Find out more about filing a complaint in this article.
How to prove the falsity of the facts in a malicious denunciation?
Since Law no. 2010-769 of 9 July 2010, article 226-10, paragraph 2, provides that “the falsity of the fact denounced necessarily results from the decision, which has become final, of acquittal (acquittement or relaxe) or dismissal of the case declaring that the fact was not committed or that it is not attributable to the person denounced”.
The mere fact that a final decision of acquittal or dismissal of the case has been given creates a legal presumption of falsity. In other words, the victim will not have to prove that the author knew that the fact denounced was false. Please note: a decision to close the case without further action (classement sans suite) does not, on its own, give rise to a presumption of falsity.
In the absence of such a final decision, the victim will have to establish that the author knew the facts were inaccurate at the time of the denunciation. The judge will then examine the case file personally in order to conclude, or not, that the facts are false.
What penalties and what redress in the event of malicious denunciation?
What penalties for the author of a malicious denunciation?
Natural persons face 5 years’ imprisonment and a fine of 45,000 euros. Attempt is not punishable, in the absence of a legislative provision. Several additional penalties (peines complémentaires) are provided for: a ban on exercising civic, civil and family rights (article 131-26), a ban on carrying on the activity in the course of which the offence was committed (article 131-27), a ban on holding or carrying a weapon subject to authorisation, and display or publication of the decision (article 131-35).
Legal persons may also be held liable (article 226-12 of the Criminal Code) and face in particular a fine of 225,000 euros, a ban on carrying on the activity concerned and publication of the decision.
How to be compensated as a victim of malicious denunciation?
The person denounced may claim redress for the harm suffered, whether damage to reputation, professional consequences or defence costs. They may proceed by joining the criminal proceedings as a civil party before the criminal court, or before the civil court on the basis of tortious liability (responsabilité délictuelle) (article 1240 of the Civil Code). This civil route remains open even where the denunciation, for want of established bad faith, is merely reckless (téméraire) and not malicious.
Malicious denunciation, defamation or false denunciation (dénonciation mensongère): how should the facts be classified?
Malicious denunciation and defamation: what is the dividing line?
Defamation, governed by the Law of 29 July 1881, protects honour and reputation, without presupposing exposure to sanctions. Where statements are addressed to an authority or to an employer in order to bring about sanctions, the case law gives precedence to malicious denunciation (Crim. 13 juill. 1922 ; Crim. 17 juin 1948, Bull. crim. n° 161). Letters sent to an employer that damage a person’s reputation thus fall under malicious denunciation (Civ. 1re, 6 déc. 2007, n° 06-15.290).
Malicious denunciation and false denunciation (article 434-26): what is the difference?
False denunciation under article 434-26 of the Criminal Code protects the authority of the justice system, by penalising reports that give rise to needless inquiries. It does not require the denunciation to target a specified person. Malicious denunciation, conversely, protects the personality of the person denounced and presupposes the implication of an identified or identifiable person. The former concerns an institutional harm, the latter an infringement of a person’s rights.
Malicious denunciation and reckless denunciation: what is the difference?
Reckless denunciation refers to a complaint made abusively or imprudently, which may give rise to a civil fine (articles 177-2 and 392-1 of the Code of Criminal Procedure), without prejudice to damages (Cass. 2e civ., 3 mai 2006, n° 04-19.504). A denunciation made in good faith that proves to be inaccurate may constitute this civil fault, without thereby establishing the offence of malicious denunciation, for lack of knowledge of the falsity.
In summary
For malicious denunciation to be found, the following are needed, in summary:
- A spontaneous denunciation, by any means, targeting a specified person.
- A fact liable to give rise to judicial, administrative or disciplinary sanctions.
- An authorised recipient (judicial, police, administrative or hierarchical authority, or employer).
- Total or partial falsity of the fact denounced, or a misleading presentation giving it a reprehensible character that it does not have.
- Knowledge by the author of that falsity at the time of the denunciation (bad faith).
Proof of falsity may result from:
- either a final decision of acquittal or dismissal of the case declaring that the fact was not committed or is not attributable to the person denounced (legal presumption of falsity),
- or, in all other cases, the court’s assessment of the relevance of the accusations.
If you have questions about the situation you are facing, let us discuss it and determine together a strategy to protect your interests and those of your company.
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