Sandra Muller, initiator of #BalanceTonPorc, sentenced to defamation.A defeat for women?Raymond Taube's practical rights column<

Sandra Muller, initiatrice du hashtag #balancetonporc, a été condamnée pour diffamation le 25 septembre 2019 à verser 15.000 € de dommages-intérêts à celui qu’elle accusait sur Twitter de l’avoir harcelé sexuellement au travail.

In international opinion columns, we had already worried about the consequences that could have, in particular for women victims of sexual harassment, the incentive to denial on social networks.

The hashtag #MeToo (me too), born in the United States following the revelations of the misdeeds of the sexual predator Harvey Weinstein, had helped to release speech in the world, that of women undergoing what too many men considered (andfor some, always consider) as normal and in the order of things.

In France, it is another hashtag that invades the Twitter network: #balancetonporc, created by Sandra Muller to denounce the harassing behavior of Eric Brion, and whose success (he was retweeted more than 2.500 times) earned him to be appointed in 2017 "personality of the year" by the American magazine Time.

Today, this initiative earned her a condemnation for defamation, which she appeals to the advice that we hope for from her very media lawyer Francis Szpiner.More than a defeat for the victims of harassment, and beyond, of any reprehensible fact, this condemnation is rich in lessons that they will be able to use.

The denomination #banlancetonporc is much more brutal, more aggressive than #metoo… and more dangerous for women victims of these pigs.Who are these pigs?From the big "heavy" macho to the rapist, from goujater to crime, the range of sexual attacks is wide.They have in common to refuse a woman the right to say "no".

Except that accusing a man on a social network to be a pork, simply because he is or has been vulgar, is defamatory if the accusation is false.This is obviously even more serious if it is improperly accused of facts liable to criminal sanctions, such as harassment or sexual assault.But defamation, like slanderous denunciation, can also result from a lack of evidence, even if the facts are real.

Sandra Muller was sentenced to 15.000 € of damages, to which are added € 5,000 in legal costs.How could he have been otherwise, if his file was empty?The judge cannot decide on the basis of his statements alone and may even less demand the person in question that he reports the proof of what he did not commit.It is impossible in a state of law, and it would in any case be contrary to the right to the fair trial sanctified by the European Convention on Human Rights.

However, the labor code and the status of the public service organize a sharing of the burden of proof, for facts having taken place (or supposed to have taken place) in the context of work: the victim states the facts and the partyAvailable (the employer, the industrial tribunal) must prove that they are not constitutive of sexual or moral harassment.In practice, we are at the limit of the equity of the trial, on the edge of denunciation without proof, which would be slanderous if the facts were invented.Besides, the industrial tribunals and the courts of appeal have never condemned an employer to date because it was impossible for him to demonstrate that he had not said or did what is criticized for him,without its accuser bringing the slightest beginning of evidence.But as the risk exists, the managers and the executives are more and more numerous to leave their office open during an interview with an employee or candidate for hiring, or to invite a witness to participate, when they do not offernot to film the interview.

The citizen of a rule of law can only rejoice that defamation and slanderous denunciation are prohibited and sanctioned.Women victims of sexual harassment should not deplore it.They are also citizens of a rule of law and would not in turn want to be condemned for facts which they would be materially unable to demonstrate that they are imaginary.If Sandra Muller really suffered the sexual harassment she denounces, it is regrettable that her harasser could have it sentenced to 15.000 € of damages.If on the contrary, the journalist has chosen to settle her dispute with defamatory lies on Twitter, we must congratulate ourselves on her conviction.

Sandra Muller claims that her conviction will reduce women to silence.She is wrong.His condemnation must encourage them to prudence and not to silence.They must be fully aware of the importance of evidence, in particular if the facts fall under the criminal offense, which is the case with sexual harassment.In this hypothesis, the victim has much greater freedom in establishing the proof.She can even film the harasser without his knowledge, and use it in support of his complaint, proof which is not admissible in a civil lawsuit, for example the Labor Council.Of course, the approach requires some precautions, because it can also be an attack on privacy intimacy (even at work) or a disloyal act with regard to its employer.

The price to pay to fight against all forms of sexual violence cannot be the premium for denunciation without proof.It is too easy to claim that the cause is so noble that we can accept some collateral victims.It should nevertheless be admitted that the response (or non-response) given by police and judicial institutions to women victims of this violence can encourage them to seek other ways.Justice Twitter or Facebook should not be a.

Women like Sandra Muller and feminist associations encouraging denunciation without proof harm women whom they claim to help.They should train them in the constitution of a file and the establishment of proof, and make it known through the media and social networks, which would allow at the same time to make men too ... enterprising entrepreneurs.

Raymond Taube, editor -in -chief of international opinion and director of IDP - Institute of Practical Law