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A record libel judgment against Le Journal

The most recent libel judgment of disturbing proportions is the one against Le Journal. Le Journal and its main competitor, TelQuel (see below), are glossy, aggressive Casablanca-based weeklies that appeal to an elite readership. 

Le Journal published in its December 3, 2005, issue a report on the Western Sahara in which it criticized and ridiculed a paper prepared by a Brussels-based think-tank, the European Strategic Intelligence and Security Center (ESISC). The ESISC paper focuses on the Polisario, the independence movement that is Morocco’s adversary in the protracted conflict over the Western Sahara. The ESISC paper is entitled “The Polisario Front: Credible Partner for Negotiations or Remnant of the Cold War and Obstacle to a Political Solution in the Western Sahara?”  Le Journal charged that the paper was so one-sided in favor of the official Moroccan line that it gives the impression of having been ordered and paid for by the Moroccan government or its lobbyists.

Le Journal, which sells about 16,000 copies,never actually alleged that the ESISC received money or directives from Moroccan authorities or from intermediaries acting on their behalf. But its coverage, based on an analysis of the paper’s content, was full of innuendo. It used terms like “remote-controlled” and “directed” to describe the report, but took pains to put quotation marks around them. For example, the headline on the cover read, “Is the Polisario Finished? The Bad Arguments of a Report ‘Remote-controlled’ by Rabat.” 

ESISC president Claude Moniquet filed a libel suit against Le Journal in Morocco, saying the allegations of accepting Moroccan money to produce the paper had harmed the ESISC’s reputation. “We refuse to accept financ[ing] from any party concerned in our research,” he said at a press conference on December 20.⁷ Moniquet demanded 5 million DH in damages and the publication by Le Journal of a“correction” at its own expense in newspapers in Morocco, Europe and the United States. The state prosecutor also sought 5 million DH in damages for the plaintiff.

The libel trial of Le Journal director Aboubakr Jamaï and reporter Fahd Iraqi opened on January 16 before the Correctional Court of Rabat. The defendants asked the judge to summon as witnesses two scholars of the Western Sahara conflict who were based, respectively, in Spain and in France. These expert witnesses, the defense hoped, would endorse Le Journal’s assessment that the ESISC paper seemed suspiciously close to the Moroccan official line, showing thereby the “good faith” of Le Journal’sharsh judgment of that paper.

Truth is generally a defense in libel cases under Moroccan law. The Press Code’s Article 73 states that the party accused of libel “must prove the truth of the libelous facts” by providing the prosecutor’s office with “a copy of the documents; [and] the names, professions, and addresses of the witnesses through whom he intends to prove his case.”

However, the judge trying Le Journal, Mohamed Alaoui,⁸ rejected the magazine’s motion to summon the two expert witnesses. In his written judgment he based this refusal not on the relevance of the witnesses, but rather on an unorthodox and counter-intuitive reading of Article 73, by which the exculpatory evidence submitted by the defendant must be composed of both documents and oral witnesses, but not one or the other alone. This procedural ruling prompted Le Journal’s lawyers to withdraw from the trial in protest, arguing that Judge Alaoui had denied them the means to defend their clients.

On February 16, Judge Alaoui announced the conviction of Le Journal for defaming the plaintiff, fining Jamaï and Iraqi 50,000 DH each, the maximum allowable fine for libel under Article 47 of the Press Code. He also ordered Le Journal to pay Moniquet 3 million DH in damages, and to pay for publication of the judgment in three Moroccan newspapers.

While Moroccan law specifies the maximum fines that can be levied for libel, it leaves to the judge’s discretion the amount of damages to award to the libeled party, based on the judge’s assessment of the harm inflicted. Yet during the trial of Le Journal, the judge neither asked Moniquet to document the cost of the harm endured by the ESISC nor explained how he arrived at the figure of 3 million DH for damages. (Moniquet acknowledged in a phone conversation with Human Rights Watch on April 20, 2006 that the court never asked him to detail how the material and moral damage he suffered added up to the 5 million DH he was seeking. He mentioned to Human Rights Watch, however, on April 10, 2006, that in addition to impugning the institute’s reputation, Le Journal’sarticle had contributed to the decision by at least one client to postpone or cancel a commission to the ESISC for North-Africa related work.)

Both the defendants, on one side, and the plaintiff and the prosecutor on the other, appealed the verdict, with the defendants seeking acquittal and the opposing parties appealing the 3 million DH judgment as too low.

On appeal, the defense asked the Rabat Court of Appeals to nullify the lower court’s conviction because of alleged procedural errors, notably the refusal to summon the witnesses proposed by the defense. The appeals court judge refused this motion, but, at his own initiative, subpoenaed the two witnesses proposed by the defense during the lower-court trial.

Only one of the two, Spanish scholar Bernabé López-García, attended. He took the stand at the April 4 session of the trial – by which date the defense had already withdrawn from the trial to protest the court’s refusal to nullify the lower-court verdict. The judge asked Lopéz-García only one substantive question: Did the government of Morocco order or pay for the paper produced by the ESISC? López-García replied that he did not know. The judge avoided the line of questioning sought by the defense, which was to probe whether experts on the Western Sahara conflict considered Le Journal’s critique of the ESISC report to be reasonable. On April 18, the Appeals Court affirmed the lower-court verdict and sentence.

According to defendant and Le Journal director Aboubakr Jamaï, the record judgment against Le Journal was motivated not by its alleged defamation of the ESISC but rather by the article’s underlying argument, which was that Moroccan authorities were mismanaging the Western Sahara issue by trying to discredit the Polisario and cast it as an unworthy partner for negotiation. Authorities, who are intolerant of criticism of their Western Sahara policy, found in the ESISC’s libel complaint a convenient instrument for punishing Le Journal, Jamaï told Human Rights Watch on April 20.

Disturbing events that coincided with the lower-court trial of Le Journal reinforced suspicion that Moroccan authorities were seeking to pressure or punish the weekly. On February 14 – two days before the lower-court verdict – demonstrators rallied outside Le Journal’s downtown Casablanca headquarters, denouncing it on the grounds that it had reprinted the controversial cartoons of the Prophet Muhammad first published in a Danish newspaper. A similar rally, also to protest Le Journal’s supposed publication of the cartoons, took place the day before in front of the parliament building in Rabat Moroccan television ran entirely one-sided coverage of the demonstrations, interviewing the angry protestors without airing conversations with any staff member of Le Journal or pointing out that in fact the weekly had never reprinted the cartoons.

The demonstrations were anything but spontaneous. As Le Journal and others have credibly documented, Moroccan officials recruited and provided transportation to men, women, and children from poor neighborhoods who had been told that the target of the protests were “infidels” who had reprinted the cartoons. Although witnesses said that local officials and vehicles were present at and contributed to the protests, further investigation is needed to identify which public officials ordered and supervised these activities. Minister of Communication Nabil Benabdellah denied that Moroccan authorities had any hand in the demonstrations. Other than such denials, Moroccan officials have said nothing publicly about them.

Le Journal’s staff understandably said they felt physically endangered by the anti-Journal demonstrations and hostile coverage on state television, at a time when scores of persons had died across the Muslim world in angry cartoon-related protests.