Cass. crim., 13 Jan. 2026, No. 24-86.344
In a judgment published in the Bulletin on 13 January 2026, the Criminal Division of the French Supreme Court (Cour de cassation) makes a decisive contribution to the delicate interplay between the special justification defence in Article 122-9 of the Criminal Code, introduced by the Sapin II Act and strengthened in 2022, and the good faith defence specific to defamation litigation. By holding that the former does not apply in defamation proceedings, while developing a judge-made regime under which the latter is assessed in a modulated manner, the Court outlines a protection, reinforced under the European Convention, for whistleblowers prosecuted before the criminal courts for a press law offence.
The case that gave rise to this judgment presents a configuration typical of whistleblower litigation in the business world. In December 2019, a partner in a company manufacturing and marketing cosmetic products published an article on his LinkedIn account accusing his fellow partner and managing director of several criminal acts and breaches of the applicable regulations, particularly as regards product compliance. A few months earlier, the first partner had filed a report with the departmental directorate for the protection of the population and lodged a criminal complaint against his partner for the illegal practice of pharmacy, deception, placing a medicinal product on the market without authorisation and endangering the lives of others. Without waiting for the outcome of these institutional steps, he had therefore chosen the route of public disclosure.
The whistleblower’s fellow partner then lodged a complaint and joined the proceedings as a civil party for public defamation of a private individual. Convicted at first instance and by the Court of Appeal, which refused him the benefit of good faith, the defendant appealed to the Criminal Division a first time, which quashed the judgment on 5 September 2023 (No. 22-84.763), prescribing a two-stage methodology for assessing the good faith defence. On remand, the Aix-en-Provence Court of Appeal, by a judgment of 18 September 2024, again upheld the conviction, refusing him the benefit of both good faith and the whistleblower justification defence. The Criminal Division was seised a second time by the defendant alone.
The French Supreme Court (Cour de cassation) dismisses the appeal, but with reasoning of remarkable depth and clarity that sets out how Article 122-9 of the Criminal Code and the good faith defence interact where a defendant prosecuted for defamation claims whistleblower status.
I. Whistleblower status does not apply in defamation proceedings
Since Act No. 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as the “Sapin II Act”, Article 122-9 of the Criminal Code has established a ground for exemption from criminal liability for whistleblowers. As amended by Act No. 2022-401 of 21 March 2022, which transposed Directive (EU) 2019/1937 of 23 October 2019, this provision exempts from all criminal liability any person who “breaches a secret protected by law”, provided that the disclosure is necessary and proportionate to safeguarding the interests at stake, that it is made in compliance with the reporting procedures laid down by law and that the person meets the criteria defining a whistleblower set out in Article 6 of the Sapin II Act. The new version of this provision, which came into force in 2022, added a second paragraph extending the exemption from criminal liability to acts of “removal, misappropriation or handling of documents or any other medium containing the information” lawfully obtained.
From the very wording of this provision, the French Supreme Court draws a consequence which, although never expressly stated by the Criminal Division until now, appears logically inevitable: Article 122-9 of the Criminal Code “limits reliance on this justification defence to the person who breaches a secret protected by law or who removes, misappropriates or handles documents or any other medium containing information of which he or she has lawfully become aware” (§ 8). It follows that “the mechanism does not apply in defamation proceedings” (§ 9).
This reading is convincing. The justification defence in Article 122-9 was not designed to wipe out any offence committed in the course of a disclosure, but only those arising precisely from the breach of a legally protected secret (breach of professional secrecy under Article 226-13 being the archetype) or from accessing, retaining and transmitting documents covered by that secret. Defamation is an offence with a distinct purpose: it punishes the imputation of a fact that harms a person’s honour or reputation, irrespective of any question of confidentiality. As noted in the opinion of First Advocate General Mr Desportes, the very exclusions laid down in paragraph II of Article 6 of the Sapin II Act (which cover national defence secrecy, medical secrecy, judicial secrecy and lawyers’ professional secrecy) show by implication that the essential purpose of whistleblower protection is to allow the disclosure of facts normally covered by confidentiality rules, and not to justify the excesses of freedom of expression punished by the Press Act of 29 July 1881.
II. A judge-made, specific assessment of good faith for defendants claiming whistleblower status
The inapplicability of Article 122-9 of the Criminal Code could have sufficed to justify dismissing the appeal had the Criminal Division simply rejected the ground of appeal as based on a provision inapplicable in the case at hand. But the Court refuses this minimalist solution, and therein lies the real significance of the judgment. As Mr Desportes had already stressed in his opinion, it would be difficult to treat as irrelevant the fact that the defamatory statements are attributed to a person who has expressly claimed whistleblower status: while that status cannot be relied upon under Article 122-9, it can be under Article 10 of the European Convention for the Protection of Human Rights. The Criminal Division therefore adopts an integrative solution: where a defendant prosecuted for defamation argues that he acted as a whistleblower, the assessment of the good faith justification defence must be the subject of a specific examination incorporating the Convention criteria developed by the European Court of Human Rights to protect whistleblowers’ freedom of expression.
In so doing, the Court establishes a two-stage methodology.
First, it must be determined whether the defendant did indeed disclose, in breach of the rules applicable to him, confidential information obtained in the course of his professional activity. This precondition is fundamental, as it determines whether the enhanced review framework derived from European case law applies. It draws directly on the judgments in Guja v. Moldova (ECtHR, GC, 12 February 2008, No. 14277/04) and Halet v. Luxembourg (ECtHR, GC, 14 February 2023, No. 21884/18), which developed and consolidated a specific protection regime for officials or employees disclosing confidential information obtained in their workplace. The Strasbourg Court has itself stated on several occasions that enhanced whistleblower protection does not apply where the person prosecuted for defamation cannot demonstrate such a context of professional confidentiality.
If this first condition is not met, that is to say if the disclosure does not concern confidential information gathered in the context of an employment relationship, the defendant cannot rely on any special protection.
The trial judges must then examine good faith “solely in the light of the ordinary, more demanding criteria, namely the existence of a debate of general interest and a sufficient factual basis” (notions covering those of a legitimate aim of informing and a serious investigation) “and then, where those two conditions are met, prudence and measure in expression and the absence of personal animosity”.
This hierarchy between the special regime and the ordinary regime is a significant methodological advance: the benefit of the more lenient regime is not automatically granted to anyone who claims to be a whistleblower, but is conditional on prior verification that the conditions constituting that status under European case law are actually met.
Conversely, if the above precondition is met, the second stage of the methodology set out by the Criminal Division comes into play: the court must assess good faith “in the light of Article 10 of the Convention, which must be examined solely by reference to the aforementioned Convention criteria, which replace the usual criteria for this justification defence”. The Criminal Division here takes up, in summarised form, the criteria laid down in the Guja and Halet judgments cited above: whether there were other means than direct public disclosure, assessed in the light of the circumstances of each case; whether the person had reasonable grounds to believe that the information disclosed was authentic and acted in good faith, which may be inferred in particular from the absence of financial gain or personal advantage; and, finally, the public interest of the information disclosed, weighed against the harmful effects of the disclosure for the employer, but also for private individuals or with regard to other public interests.
The practical significance of this substitution deserves to be emphasised. The offence of defamation is frequently used in gagging proceedings (SLAPP, Strategic Lawsuit Against Public Participation) brought in the wake of high-profile public alerts. Incorporating the Halet criteria into the assessment of good faith precisely ensures that the criminal court’s response is proportionate to the particular situation of the whistleblower, by not applying to him, without nuance, the requirements usually imposed on journalists or authors of critical statements. The two analytical frameworks are genuinely close (the public interest of the disclosure echoes the “debate of general interest”, and the requirement to verify the information echoes the “sufficient factual basis”), but the European criteria are, in certain respects, more flexible, in particular because they take account of the constraints specific to the whistleblower’s professional situation and the legitimacy of his action.
The application to the facts of the case nonetheless shows that this flexibility has its limits. The Criminal Division upholds the reasoning of the trial judges, who concluded that the defendant had not acted in good faith on the ground that “although the subject matter of the disclosure served a public interest, his good faith could not be accepted owing, in particular, to the failure to verify the truth of the serious allegations made and his intention to harm his former partner personally” (§ 22). The findings of fact of the Court of Appeal, which fall within its sovereign assessment, indeed show that the defendant had acted more to put pressure on his partner than out of a disinterested wish to protect the general interest, and that he did not have sufficient evidence to support the serious accusations made. The French Supreme Court further notes that the emails produced by the defendant to establish the authenticity of the information disclosed, dated 2021, post-dated the disputed statements of 2019 and therefore could not show that the disclosure itself was based on serious verification at the time it was made (§ 23).
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The judgment of 13 January 2026 organises the meeting point between whistleblower law and criminal press law. Article 122-9 of the Criminal Code is confined to its natural domain (offences involving the disclosure of secrets), while the right to blow the whistle exerts its influence in defamation matters through a modulation of the criteria for assessing good faith, under the aegis of Article 10 of the European Convention. The Criminal Division thus succeeds in the difficult task of not leaving whistleblowers unprotected when they are the target of gagging proceedings under press law, while avoiding granting them a total immunity that would turn whistleblowing into an instrument for settling personal scores. The continued requirement to verify information and the exclusion of any intention to harm the opposing party personally constitute, within this architecture, the essential safeguards of a right to blow the whistle that cannot become a licence to defame.
