They included a gym teacher, a gallery owner, and a publicist. Several said their online comments about the French first lady, Brigitte Macron, were in jest.
But on Monday, a Paris court found these people from all walks of life – 10 in all – guilty of cyberbullying, after they posted or reposted comments on social media questioning Ms. Macron’s gender and sexuality.
The sentences range from an eight-month suspended prison sentence to mandatory classes about online harassment. Some saw their access to social media suspended, and all 10 will be forced to collectively pay €10,000 (about $11,700) to Ms. Macron in moral damages.
Why We Wrote This
Brigitte Macron’s legal victory over those who lied about her gender sets new limits on cyberbullying of public figures in France. But the French first lady faces a far steeper challenge seeking similar relief in U.S. courts.
For broader French society, the verdict is a clear message: Cyberbullying has no home here.
But as the Macrons look to a defamation lawsuit on the other side of the Atlantic they have filed against conservative firebrand Candace Owens, who has made similar claims about the French first lady, the presidential couple can expect an uphill battle.
Freedom of speech protections differ between France and the United States, and the Macrons already struggled to win the defamation case in France.
As the Macrons seek justice over the first lady’s identity, they find themselves at the whims of the American legal system. Why did this case win in France, and could a similar one hold up in a U.S. court?
“This case sends a message that, in a democratic society, people can’t just spread hateful conspiracy theories without any consequences,” says Emma-Kate Symons, a Paris-based journalist at the online observatory, Conspiracy Watch. “All eyes are on the U.S. now.”
Mistrust of the elite
Rumors that Brigitte Macron was born a man have been circulating online since Emmanuel Macron was first elected president in 2017. Conspiracy theorists claim Ms. Macron was born Jean-Michel Trogneux and changed her name to Brigitte Trogneux.
The Macrons say the claim is completely false and that Mr. Trogneux already exists: He is Ms. Macron’s 80-year-old brother who lives in the northern French town of Amiens.
Experts say behind the claims is a deep mistrust of France’s political class and a mystery surrounding the Macrons’ relationship. At 48, Mr. Macron is 24 years younger than Ms. Macron, and they first met when he attended a high school where she was a teacher. They have never publicly discussed their atypical relationship.
“This is about defiance. [The French] no longer believe in their political elite,” says Emmanuelle Anizon, author of “The Madame Affair: The Anatomy of a Fake News Story,” who led an investigation into the source of the conspiracy against Ms. Macron. “The more [the Macrons] hide their relationship, the more people think they could be hiding other things.”
Despite how quickly the online rumors have gained traction, prosecuting those suspected of starting them has proved quite challenging.
Last year, the Macrons filed a criminal defamation lawsuit against spiritual medium Amandine Roy and self-described independent journalist Natacha Rey, who were later found guilty of slander over their online claims that Ms. Macron was born male.
But the pair were later cleared on appeal, after the courts found that saying someone had changed gender was not an “attack on their honor.”
The Macrons were initially advised to drop their U.S.-based lawsuit against Ms. Owens, over concerns that a legal case would only amplify the rumors. Former first lady Michelle Obama and former Vice President Kamala Harris were both subject to similar online conspiracies about their gender identity. But neither pursued legal action, where fees can quickly climb into the thousands and U.S. freedom of speech laws strongly protect comment about public figures.
But Ms. Macron said during questioning by police for the most recent French case that “all these allegations have had a significant impact on those around me and on myself.” The night before the verdict came in, she told French television that she hoped to “set an example” to young people that bullying will not be tolerated.
American speech protections
The latest ruling certainly sets a precedent as to how French courts process cyberbullying claims going forward. But legal experts say it will have little bearing on how the U.S.-based case plays out.
In France, cyberbullying is defined as online harassment or intimidation that is repetitive in nature, and has been punishable by law since 2014. While it is considered a crime in most states, there is currently no federal law against cyberbullying in the United States, making it more difficult for the Macrons to have pursued a U.S.-based lawsuit on those grounds.
Legal experts say the Macrons were smart to have sought a lawsuit based on defamation in the U.S., rather than one centered on hate speech. In the U.S., hate speech is protected under the First Amendment, since the landmark 1969 Supreme Court ruling Brandenburg v. Ohio. In that case, the court ruled that inflammatory speech can only be prohibited if it is directed to incite or produce imminent lawless action of violence. Misgendering Ms. Macron almost certainly fails to meet that standard.
“[The First Amendment] is all about the marketplace of ideas, and restrictions are minimal,” says Roman Zinigrad, an assistant professor of law at the American University of Paris. “If someone calls to kill a [certain ethnic minority group], for example, it’s considered hate speech. But practically anything else is allowed.”
Still, the Macrons face challenges as they seek damages from Ms. Owens. While defamation laws do exist, the legal standards for proving defamation are stringent, with public figures facing a higher bar. Though all defamation plaintiffs must prove the statements made about them are false, public figures must additionally show that the statements were made with actual malice or a reckless regard for the truth was involved. Simple statements made in error about the famous do not rise to the level of defamation.
That doesn’t mean the case against Ms. Owens is impossible. Unlike French judges, who rely heavily on the technical aspects of the law, the reading of the law by American judges “involves a certain interpretation within the context of society,” says Dr. Zinigrad. “The law is not just a dead document.”
For now, the Macrons are celebrating their legal victory in France.
“Up until now in France, we have had a tolerance for attacks against public figures, as if it’s part of the deal of being famous,” says Gérard Haas, a Paris-based lawyer who specializes in cyberbullying.
But now, there are clearer limits as to what can be said about others online, with potential sanctions to back it up.
“It’s not easy” to say something criminal about a public figure, says Mr. Haas. “But it’s possible.”
