Denigration, defamation

Distinction between denigration and defamation

Denigration is defined as the discrediting of a product or service. This is a form of unfair competition. It is distinguished from defamation which requires that the attack, injuring honour or consideration, be brought against a natural or legal person.

The distinction between denigration and defamation is fundamental, as these two behaviours are not sanctioned on the same basis.

While reparation for denigration must be sought in the field of tort civil liability under Article 1382 of the Civil Code, the action for defamation is based on the Law of 29 July 1881 on freedom of the press and carries a criminal penalty.

Denigration or defamation: what procedure to take?

The choice of the procedure to be undertaken is of considerable importance insofar as, in the event of defamation, the action is time-barred within 3 months from the publication of the defamatory remarks (against five years in the case of denigration) and the summons must respect certain forms under penalty of nullity.

A precise analysis of the facts in order to determine the ground on which to act is therefore an essential prerequisite for any legal action.

The distinction between the two concepts can be delicate: allegations against the manager of a company can in reality only aim to denigrate the services provided by this company in order to divert customers. In this case, the facts fall within the scope of denigration (Cass.,^1st civ. 5 Dec. 2006, No.05-17.710; Cass. 2^nd civ. 8 April 2004, R.G No. 02-17588).

GOUACHE Avocats advises companies on the strategy to adopt when they are victims of denigration or defamation and assists them in litigation when they wish to prosecute such acts, or in defence, when they are accused of such acts.

GOUACHE Avocats also intervenes upstream to validate the messages disseminated by the company and ensure that they do not constitute denigration or defamation.