Disparagement, Defamation

Distinction between Disparagement and Defamation

Disparagement is defined as the discrediting of a product or service. It is a form of unfair competition. It differs from defamation, which requires that the attack, damaging honor or reputation, be directed against a natural or legal person.

The distinction between disparagement and defamation is fundamental, as these two behaviors are not penalized on the same grounds.

While redress for disparagement is sought under the tortious civil liability provisions of Article 1382 of the French Civil Code, an action for defamation is based on the Law of July 29, 1881, concerning freedom of the press and carries criminal penalties.

Disparagement or Defamation: Which Procedure to Follow?

The choice of legal procedure is of considerable importance because, in cases of defamation, the statute of limitations is three months from the publication of the defamatory statements (compared to five years for disparagement), and the summons must comply with certain formalities or it will be deemed invalid.

A precise analysis of the facts to determine the legal basis for action is therefore an essential prerequisite to any legal proceedings.

The distinction between the two concepts can be subtle: allegations targeting a company manager may in reality only aim to disparage the services provided by that company in order to divert its clientele. In this case, the facts constitute disparagement (French Supreme Court, 1^st Civil Chamber, December 5, 2006, No. 05-17.710; French Supreme Court, 2^nd Civil Chamber, April 8, 2004, Case No. 02-17588).

GOUACHE Avocats advises companies on the strategy to adopt when they are victims of disparagement or defamation and assists them in litigation when they wish to pursue such actions, or in defense when they are accused of such acts.

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