French landmark case: A new dawn for investigative journalism?

Investigative journalist Denis Robert, who has fought a 10-year legal battle in France. Credit: Nina R

At the end of last year the French courts finally ended a long running legal battle which saw an investigative journalist cleared of defamation 10 years after he first reported on Clearstream, a financial institution based in Luxembourg.
 
The landmark ruling stated that although the work of journalist Denis Robert contained inaccuracies, the thoroughness of his investigation and the public interest in the story outweighed the defamatory claims.
 
The case has already been used as a legal precedent and could make the work of investigative journalists in France and beyond much easier.

Taking on the giant

When Denis Robert began his investigation about the financial institution Clearstream in 1999 little did he know what he was starting.

Since 2001 Robert has published three books and a series of television documentaries claiming that the financial clearing house Clearstream could be used by banks, organisations and even governments as a hiding place for money laundering and tax evasion. The revelations – which is also the title of one of Robert's books – had a massive impact, being widely reported in the French media.

Some said it was an unfounded conspiracy theory, others described it as the biggest financial scandal of the decade.

After 10 years, more than 60 lawsuits and 400 bailiff visits, Clearstream vs Robert is over. The French investigative journalist was cleared and it is now time to assess the impact that this media case could have on journalism in France and worldwide.

Clearstream vs Robert: The bone of contention

Robert investigated the firm with the help of former Clearstream employee Ernest Backes.

Among hundreds of documents, Denis Robert gathered dozens of diaries, details of bank accounts, copies of microfiches (photographic film printed with data on transactions details), hundreds of emails and 120 hours of video recordings, including an interview with the former CEO of Clearstream, André Lussi.

In 2002 Robert was also given a series of leaked documents from whistleblower Florian Bourges who, while working on a €16 million (£13.2 million) audit commissioned by Clearstream at the recommendation of the court, discovered a series of "malfunctions" in financial transactions made through the financial institution.

According to Robert, at the time of his investigation, Clearstream offered services that facilitated money transfers internationally and could make money laundering and tax evasion possible.

Denis Robert argues that many journalists misinterpreted his work by reporting that he said Clearstream was effectively laundering money. But Robert said it was the clients that he was referring to, not the financial institution.

"I think it is important to put things straight," Robert told Journalism.co.uk. "I had no proof that they laundered money. All I can say is that, at the time, the way Clearstream worked made it possible and easy for someone who was willing to carry out money laundering or tax evasion to do so using their system."

Clearstream denied all the allegations Robert brought forward in his books and documentaries and has been taking legal action against him for the past 10 years.

"It's obviously wrong," Nicolas Nonnenmacher, spokesperson for Clearstream's vice president told Journalism.co.uk. "The idea of a double accountancy is foolish, we did some analysis internally and there is not much more to say […] What Denis Robert said is wrong."

The end of a battle?

In February 2001 the French Court of Cassation in Paris ruled that although the work of Denis Robert contained some inaccuracies and certain passages of his book Revelations "publicly defamed Clearstream", the thoroughness of his investigation and the public interest in the story outweighed the claims.

The ruling published on 3 February 2011 said that "Robert's publication did not cross the limit of freedom of speech", as stated in article 10 of the European Convention on Human Rights, but that the journalist engaged in "risky interpretations".

When dealing with a debate in the public interest, press freedom allows the possible use of a degree of exaggeration, or even of provocation, in remarksCourt ruling

"When dealing with a debate in the public interest, press freedom allows the possible use of a degree of exaggeration, or even of provocation, in remarks," the ruling states.

Clearstream appealed against the court's decision and both parties were summoned for a final verdict. On 29 November 2011 the Court of Appeal in Lyon announced that it supported the previous ruling and dismissed Clearstream's appeal.

The court recognised the thoroughness of Robert's investigation about the financial institution and "his goodwill to produce a balanced work", which is how Robert described it.

"The serious nature of my investigation has been put forward and that has always been the most important thing for me," Denis Robert said.

"The court of appeal also refused Clearstream's request to reassess the allegations against Denis Robert," Bénédicte Litzler, Robert's lawyer told Journalism.co.uk. "It is a way to say that the debate is over," she added.

Both parties claimed for compensation, citing damages the trial had on their reputations.

Robert's Lawyer said that Robert was "targeted since 2001 by multiple defamation claims by Clearstream and suffered substantial personal, professional, moral and financial prejudices".

Clearstream's lawyer, Christophe Belloc, denied such behaviour from the financial institution, pointing out that, according to him, Robert gained a large amount of publicity from the trial.

Both parties' compensation claims were rejected, although Clearstream was charged more than €56,000 (£46,600) to cover Robert's legal costs.

"It is common in the French judicial system that the losing party is asked to pay for legal costs, but never in those proportions," Bénédicte Litzler said.

This amount is in addition to costs of €9,000 (£7,500) charged to Clearstream by the Court of Cassation in Paris last February.

"Those amounts aren't insignificant", Robert told Journalism.co.uk. "I am very proud today that I went ahead with this and proved that a journalist could win against such a powerful financial institution. The Clearstream case about my investigation and the financial institution's legal threats against me are now over – for good."

Clearstream's reaction is less celebratory. "There is no reason to celebrate because, as an institution, it considerably harmed our reputation, independently to the decision taken on 29 November," Clearstream spokesman Nicolas Nonnenmacher told Journalism.co.uk.

Denis Robert: The new hero of French investigative journalism?

This was a landmark case which set a legal precedent. It is now recognised by French media law that a journalist is allowed to make some errors in reporting as long as a thorough investigation has been carried out with good intention.

Denis Robert is now considered a hero in the industry. "The profession owes a lot to Denis Robert", said Dominique Pradalié, the secretary general of the French union of journalists (the SNJ).

"If the court decision, thanks to Robert's courage, could help the profession to get out of the mess which it is in today, it would be wonderful. The message in this story is that journalists should be opinionated and that they should carry on. I hope there will be more journalists like him from now on."

Robert argues he fought the case to make a statement about the hardship journalists face in investigating institutions that have unlimited resources.

"Is it normal that a journalist gets sued from every side during 10 years like I was? I don't think so. Even though this battle was tough, I am really proud that I have resisted the excessive series of legal actions taken against me.

"I have never given up, because I knew I was right. I did my job properly, and I was convinced that one day everyone would recognise that."

Dominique Pradalié compared Robert to the renowned French journalist Albert Londres who is considered one of the inventors of investigative journalism. Londres criticised the abuses of colonialism and forced labour in the early 1900s.

"Denis Robert is our new Albert Londres, in fact, he is even greater," Pradalié said.

I can only admire his recklessness because you can't possibly measure the risks when you throw yourself in to such a big storyOlivier Schmouker, LesAffaires.com

Olivier Schmouker is a Canadian journalist who works for LesAffaires.com and several French media organisations. He met with Denis Robert in Quebec last month. "What happened to Robert is unbelievable," he told Journalism.co.uk. "I can only admire his recklessness because you can't possibly measure the risks when you throw yourself in to such a big story.

"At the same time, he was not a nobody as he had worked for the French newspaper Libération for 10 years. He knew what he was heading into. I can only admire this mix of innocence and bravery; to have such faith is remarkable."

Robert's books are back on the shelves and his documentaries have again been released on DVD.

"That is a big victory for me," Robert told Journalism.co.uk.

The biggest achievement, according to Robert, is that his trial has become case law that changes defamation rules for journalists and offers more freedom of expression.

"I am very proud to be at the origin of a law ruled by the Court of Cassation that is now useful to all journalists and makes them more free."

A dozen legal cases have already been won by journalists and charities since February 2011 thanks to the Clearstream vs Robert case.

In 2009 the French journalist Jean-Robert Viallet produced a documentary about Carglass, a leading French vehicle glass repair and replacement company, and used the Clearstream vs Robert example to win in the Court of Appeal in 2011.

"This case states that when a journalist investigates a sensitive subject or big financial institution, and providing the work is of a serious nature, he is allowed to make inaccuracies or use some degree of exaggeration," explained Robert.

"Comments that were previously considered litigious are no longer. It is real progress for the press in France and other countries. I was invited to the Belgian parliament to discuss what impact my case could have there. It is really promising."

In addition to being cited in media cases in France and receiving attention from Belgium, the Clearstream vs Robert case could also impact on other countries such as Canada, as Olivier Schmouker explained.

"Denis Robert is a role model for us. He is quite incredible. Here in Canada, there is an ongoing debate about the way big corporations try to intimidate journalists and NGOs who investigate their every move.

"When a small charity denounces the wrongdoing of a global brand, the latter sends a group of lawyers to sue the small charity which gets smashed since it can't afford to defend itself.

"So journalists and small organisations end up losing their legal battles or worse, they admit they were wrong even if they weren't. We are looking for a way to stop this from happening here in Canada as it is still very common practice, and Robert's case might be a good way to move things forward."

A good example of how Clearstream vs Robert has been used in other trials is the case of the small charity Comité Catholique Contre la Faim et le Développement (CCFD), which released a report in June 2009 denouncing money laundering in more than 30 countries.

"The president of Equatorial Guinea took legal actions against us for defamation.

"Our lawyer referred to various court rulings including some from the European Court of Justice and the Clearstream vs Robert case. The latter helped us argue that even though our report gave a subjective account of the story, sometimes using a militant tone, the general interest of our investigation prevailed."

The CCFD was cleared from the defamation claims, although the president, Teodoro Obiang Nguema, appealed against the court's decision.

Where does this case stand compared to UK law?

The European Court often insists on the role that press freedom plays.

"It is important for the media to be able to publish information on any given subject as long as it of public interest," Bénédicte Litzler, Robert's lawyer, said. "Denis Robert's investigation, the books and television documentaries that he produced fit this duty of public interest."

The Clearstream vs Robert case makes French law more similar to UK libel law. In the same way that the 'McLibel' case and the Simon Singh case are now big examples in the British media landscape, Denis Robert's case is expected to have an impact on investigative journalism in France and abroad.

Bénédicte Litzler explained that even though a journalist might have made defamatory comments, the court can recognise his or her goodwill if four elements are gathered: "Firstly, you have to be cautious in the tone of your story and prove, secondly, that you don't have the intention to do any harm to a specific person, because, thirdly, you carried out a serious investigation.

"And finally, the law says you have to pursue a legitimate goal. It is those four elements that enable journalists to say 'even though I said something libellous, I was in my right to do so and I am not to be condemned for it'."

Clearstream: Journalists need more training

Since the beginning of the trial, Clearstream implemented a no comment policy with the press. The company believes that defending its case to the media would have done more harm than good and that most members of the press did not understand what the company was actually doing.

The most important thing, according to Nicolas Nonnenmacher from Clearstream, was for them to regain the trust of clients rather than the press or the public.

"To contribute to the public discussion won't really help us anyway," Nonnenmacher argued. "We have clients in France and worldwide and our communication was more focused on them than towards the media.

"Giving this point of view in public would have accelerated discussions and would probably have helped Robert publish his next comic book or something else, so we preferred not to say anything."

But the real issue, Nonnenmacher pointed out, is that most of the journalists who covered the case were oblivious to what Clearstream was.

"People don't properly understand what our company does. If you are not into financial markets, and even if you are, what we do is very specific and quite complicated."

Nonnenmacher believes that to avoid further misunderstanding about the integrity of Clearstream, journalists need proper training in the subject.

"I had planned in this context to invite journalists from various media, especially those who wrote negative comments about us, and explain to them what Clearstream is all about," he said.

"The debate around Clearstream is not in our interest," he added. "It would take a major effort to change the public's opinion. It's going to be very hard. I would be prepared to make this effort with the media. What is depicted in Robert's work is far from what we do as a company."

The case is over (or is it?)

Although the trial is over, either side could technically take it further, Nonnenmacher argued. "What we do as a company is that we are analysing the motivations behind the court's decision. Clearstream still rejects the grievances against the company."

I have no regrets except maybe the time I've lost because of this trial, the novels I could have written and that naivety I had before and that was somehow stolen from meDenis Robert

As for Denis Robert, he believes it is finally time for him to move on and has declared he has no animosity towards Clearstream.

"I have no regrets," Robert said, "except maybe the time I've lost because of this trial, the novels I could have written and that naivety I had before and that was somehow stolen from me."

"The problem that I have is that although my comments have been cleared as not defamatory," Robert added, "nothing has been done to change the financial system detailed in my books and documentaries".

However, Pascal Canfin, the director of Brussels-based watchdog Finance Watch and the vice president of the EU Parliament, has been showing an interest in Robert's argument.

Whatever people think about Denis Robert's reports, his legal battle is now considered a landmark case that will give more freedom to journalists and may inspire others in carrying out investigations.

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