Back in January, Nicolas kicked off our ”FALQs” (aka “Frequently Asked Legal Questions”) series with a post on terrorism in France. He was asked on Twitter to continue the series with a post on freedom of speech in France. He has previously blogged about ”How Sunday Came to be a Day of Rest in France,” “Napoleon Bonaparte and Mining Rights in France,” and “French Law – Global Legal Collection Highlights.”
The attacks on the satirical magazine Charlie Hebdo that occurred in Paris in January led to much discussion about freedom of expression in France. Here are answers to some of the most frequently asked questions on this topic.
1. Does France have anything like the U.S. Constitution’s First Amendment?
The French Constitution protects freedom of expression, but not to the same extent as the First Amendment does under U.S. law. Specifically, the French Constitution incorporates the Declaration of Human and Civic Rights of 1789, which protects freedom of speech. Article 10 of the Declaration of Human and Civic Rights states that “No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.” Article 11 follows that up with “The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”
In other words, the French Constitution recognizes freedom of speech, but also explicitly allows legislation that would limit it. France is also bound by the European Convention on Human Rights, article 10 of which also protects freedom of speech while acknowledging the State’s right to limit this freedom in certain circumstances. Finally, no discussion of freedom of speech in France would be complete without at least a mention of the Law of July 29, 1881, on Freedom of the Press (Loi du 29 juillet 1881 sur la liberté de la presse), which is considered one of France’s foundational laws in matters of freedom of speech. This Law of 1881 enshrines freedom of the press, while also setting limits to what can legally be published.
2. What are the limits to freedom of speech under French law?
In practice, France has many laws limiting freedom of expression. Some are not surprising: child pornography is illegal, for example (Code Pénal [Criminal Code], art. 227-23), and libel is not protected by freedom of speech (Law of 1881, art. 29). Others might be more surprising to an American observer. In 2000, for example, a law was adopted to reinforce the presumption of innocence of defendants accused of having committed a crime. One of the aims of this law was to prohibit the media from presenting the suspect or accused in a manner that would imply that he/she was guilty – for example, by publishing a picture of the subject in handcuffs.
Another area where French law is widely divergent from American law is the topic of hate speech. The Law of 1881 was amended in 1972 to prohibit hate speech intended to “provoke discrimination, hate, or violence towards a person or a group of people because of their origin or because they belong or do not belong to a certain ethnic group, nation, race, or religion”. In subsequent years, this was expanded to include hate speech based on gender, sexual orientation or identity, and disability. The Law of 1881 was again amended in 1990 to make the denial of crimes against humanity, as defined by the Nuremberg Charter, illegal. Most recently, the law was again amended to prohibit speech advocating or justifying terrorism.
3. What is the penalty for violating these prohibitions on speech?
As one might expect, the answer to this question will vary widely, depending on the speech in question. Looking at some of the examples cited in the answer to question 2 above, it should come as no surprise that the production and distribution of child pornography are punishable by prison time. Someone who is found guilty of libel may not only have to pay damages to the victim, but may also have to pay a fine of up to 12,000 Euros (about US$12,900) under article 32 of the Law of 1881. This fine can go up to 45,000 Euros (US$48,000) if the libel was committed because the victim is a member of a certain ethnic group, nation, race, religion, gender, sexual orientation or identity, or disability status. Hate speech and holocaust denial may be punished by a fine and imprisonment. Advocating or justifying acts of terrorism is punishable by a fine of up to 75,000 Euros (US$80,500) and up to five years in prison.
4. How often are these types of laws applied?
It is unclear how often French courts have to judge cases related to freedom of speech, but examples of such cases regularly come up in the French media. The satirical newspaper Charlie Hebdo, which was attacked by terrorists earlier this year ostensibly for disrespecting the Prophet Mohammed, was apparently sued approximately fifty times between 1992 and 2014 – prevailing in many cases, but losing in some. The French-Cameroonian comedian Dieudonné, who is known for his anti-Semitic performances, has also been sued many times over the years – also prevailing in some cases and losing in others. (Dieudonné was recently sentenced to suspended prison time for advocating terrorism, and a court recently prohibited the sale of DVDs of one of his shows.)
Political figures have been sued for illegal speech as well. Jean-Marie Le Pen, the former head of the far-right party Front National (and the father of Marine Le Pen, the Front National’s current leader) was definitely no stranger to legal controversy relating to Holocaust denial and hate speech accusations. In 2003, for example, he was sentenced to pay a fine of 10,000 Euros and 5,000 Euros in damages for making anti-Muslim remarks. In 2007, a Member of Parliament named Christian Vanneste was sentenced to pay a fine of 3,000 Euros and 2,000 Euros in damages for making homophobic remarks in the media.
The more recent provisions penalizing the advocacy or justification of terrorism have caused an increasing number of ordinary citizens to be brought to court for their speech. Following the January terrorist attacks in Paris, for example, a 19-year-old man was sentenced to five months of incarceration for having posted on Facebook some messages supporting the perpetrators of the attacks. Several other similar cases have occurred all around France in the days following the Paris terrorist attacks.
5. Does European law have any impact on French law with regards to freedom of speech?
As mentioned above (see question 1), France is a party to the European Convention on Human Rights, which states that “Everyone has the right to freedom of expression” (art. 10). The Convention also states, however, that laws can limit freedom of speech as “necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” (Id.) This would appear to allow France (and other European countries) to limit freedom of speech to a fairly large extent. Nonetheless, there have been instances where French law had to be amended after the European Court of Human Rights found that it was too restrictive of freedom of speech. One such case occurred in 2013, when the ECHR found that a French court’s conviction of a protester under a provision of the Law of 1881 that prohibits insults to the President of France was contrary to article 10 of the Convention.