France’s discriminatory yardstick for freedom of speech

Freedom of speech is considered an “essential freedom” in France.  It is protected by the 1789 Declaration of Human and Civil Rights, which is incorporated by reference into the French Constitution.  It is also protected by the European Convention on Human Rights, to which France is a party.  Yet, while French law considers free speech to be an essential component of a democratic society, it is not seen as absolute.  French legislators, and French courts, seek to balance freedom of speech with other imperatives, such as other freedoms and rights, and public order.  Thus, freedom of expression may be limited for the sake of protecting privacy, protecting the presumption of innocence, and preventing defamation and insults.  Freedom of expression may also be limited for the sake of protecting public order.  It is therefore illegal to incite others to commit a crime, even when no crime ends up being actually committed.  French law also prohibits hate speech, and speech denying or justifying

It should also be noted that a multilateral human rights treaty to which 160 countries are parties, the International Covenant on Civil and Political Rights, obliges member nations to pass domestic legislation prohibiting advocacy of national, racial or religious hatred. There is no such law that prevents people from uttering islamophobic content in France but when a person utters something about Holocaust than he is prosecuted for violating hate speech prohibitions. This conduct of France is a sheer discrimination towards Muslims and prejudicial to their rights.

Freedom of Speech in France

Freedom of expression is considered an “essential freedom” in France. It is protected by the French Constitution, which incorporates the Declaration of Human and Civil Rights of 1789.  Articles 10 and 11 of the Declaration protect freedoms of opinion and expression, describing the “free communication of ideas and of opinions” as “one of the most precious rights of man.”  Similarly, the European Convention on Human Rights, by which France is bound, provides that “everyone has the right to freedom of expression,” including “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

Consequently, courts have repeatedly recognized freedom of speech as a foundational right.  The Constitutional Council, which judges the constitutionality of French legislation, considers that “the freedom of expression and of communication is that much more precious because its exercise is a condition of democracy and among the guarantees that other rights and freedoms will be respected.”  Consequently, the right to free speech should apply broadly.  The European Court of Human Rights declared that freedom of speech “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”

Freedom of Speech Is Not Absolute

Despite its foundational importance, freedom of speech was never intended to be absolute.  In contrast to the First Amendment of the United States Constitution, the 1789 Declaration of Human and Civil Rights provided limits to freedom of expression in its very definition.  Article 10 declares 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 provides that “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.” Similarly, the European Convention on Human Rights declares that the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are 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.

Thus, French law seeks to balance freedom of speech with other imperatives, as shown by extensive jurisprudence on this topic.  The Cour de cassation, France’s highest court for civil and criminal matters, established the general principle that “restrictions to freedom of expression should be interpreted narrowly.” They must also be proportional to the expected harm, as shown by a 1933 decision by the Council of State, which is the highest French jurisdiction for matters of administrative law.  In that case, the mayor of the City of Nevers prohibited the plaintiff from holding a public meeting; in response to protests from teachers’ unions (the plaintiff had a history of mocking teachers in his speeches). The Council of State struck down the mayor’s order prohibiting the meeting on the grounds that it was disproportional to the risk of public disorder that the meeting presented. While this decision was, strictly speaking, a freedom of assembly case, its principle of proportionality applies to freedom of expression as well.  For example, it was cited in a 2014 decision in which the Council of State upheld the prohibition of a public performance by controversial comedian Dieudonné M’bala M’bala, because it was justified by the high risk that he would disturb public order by engaging in illegal hate speech.

The balance that French courts seek between freedom of expression and other imperatives is very fact-dependent.  Nonetheless, it appears that proper limits on speech can be separated into two broad categories:  limits related to the rights of others, and limits related to public order.

1. Limitation/Restriction Related to the Rights of Others

The 1789 Declaration of Human and Civil Rights define freedom in general as “being able to do anything that does not harm others.”  Consistent with that definition, freedom of speech in France is limited by the right to privacy, the presumption of innocence, the right to “human dignity,” and by rules prohibiting defamation and insult.

The right to privacy is protected by the Penal Code, the Civil Code, and the European Convention on Human Rights. Additionally, the Civil Code aims to protect the presumption of innocence of criminal defendants by prohibiting the media from presenting a person who has not yet been convicted of a crime as being guilty of that crime.

Furthermore, the Law of 29 July 1881 on Freedom of the Press, which is still in force (although it has been amended numerous times since its original adoption), prohibits defamation and insults, both written and verbal.  The Law of 29 July 1881 defines “defamation” as “any allegation or imputation of a fact which harms the honour or consideration of the person or group to which the fact is imputed.” The same provision defines “insult” as “any offensive expression, term of contempt, or invective which does not contain the imputation of any fact.” The legislators have tried to find a balance between freedom of speech and the prohibitions against defamation and insult.  Thus, speech may not be considered defamation if it can be shown to have been expressed in good faith, or if it is true—although the “exception of truth” is itself limited by the right to privacy, meaning that a true statement may still be considered defaming if it concerns a person’s private life.

2. Limitations/Restrictions Related to Public Order

a. Prohibitions on Inciting Criminal Acts

Speech may be limited to protect the community in general.  Thus, speech that incites the commission of a criminal offense can be prosecuted as complicity in that offense. Incitation of homicide, physical or sexual assault, theft, extortion, destruction of property, and other intentional degradations that put others in danger is punishable by up to five years in prison and a fine of €45,000 (approximately US$50,500) even if the crime in question was never actually committed. The same punishment applies to inciting criminal offenses against a fundamental national interest, and defending or justifying slavery, war crimes, or crimes against humanity. Inciting or justifying acts of terrorism is punishable by up to five years in prison and a fine of €75,000 (approximately US$84,160). These sanctions are increased to seven years in prison and a fine of €100,000 (approximately US$112,200) if the incitation or justification was done via a public online service.

b. Prohibitions on Hate Speech and Denial of Crimes against Humanity

Similarly, French law prohibits “hate speech,” defined as “inciting discrimination, hatred or violence against a person or group of persons because of their origins or because they belong or do not belong to a certain ethnicity, nation, race or religion,” as well as “inciting hatred or violence against a person or group of persons because of their sex, sexual orientation, gender identity, or disability.” Hate speech is punishable by up to a year in prison and a fine of €45,000, as is the denial or minimization of recognized crimes against humanity, in particular the Holocaust. In the case of these prohibitions against hate speech and denial of crimes against humanity, freedom of speech is limited for the sake of protecting human dignity.

Rights conferred by International Instruments:

The rights which are breached in France are stipulated and granted to individuals under many international and legally binding instruments. The related Articles of the instruments are as following:

 According to the International Covenant on Civil and Political Rights 1966:

 

Article 19: Right to Freedom of Expression

  1. Everyone shall have the right to hold opinions without interference.
  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regard less of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals.

 According to the Articles of the European Convention of Human Rights 1950:

ARTICLE 9: Freedom of thought, conscience and religion

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
  2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others

.

ARTICLE 10: Freedom of expression

  1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
  2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are 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

ARTICLE 14: Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Article 17: Prohibition of abuse of rights

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention”.

Legislation in France:

French law does not explicitly criminalize denial of the Holocaust. Rather, “Law No 90-615 of 13 July 1990 tending to repress any racist, anti-Semitic or xenophobic acts,” commonly known in France as the Gayssot Law (Loi Gayssot) after its author, makes it an offense to question the existence of “crimes against humanity” as they are defined in the Nuremberg Charter.
Article R645-1 of the French Penal Code prohibits the public display of Nazi uniforms, insignias and emblems.

Art 9. – As an amendment to Article 24 of the law of July 29, 1881 on the freedom of the press, article 24 (a) is written as follows:

Art. 24 (a) –those who have disputed the existence of one or more crimes against humanity such as they are defined by Article 6 of the statute of the International tribunal military annexed in the agreement of London of August 8, 1945 and which were carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned statute, or by a person found guilty such crimes by a French or international jurisdiction shall be punished by one month to one year’s imprisonment or a fine.

Art 13. – It is inserted, after article 48-1 of the law of July 29, 1881 on the freedom of the press, article 48-2 thus written:

Art. 48-2. – […] publication or publicly expressed opinion encouraging those to whom it is addressed to pass a favourable moral judgment on one or more crimes against humanity and tending to justify these crimes (including collaboration) or vindicate their perpetrators shall be punished by one to five years’ imprisonment or a fine.

Discriminatory legislation in France:

Discrimination towards Muslims is apparent in the French justice system. On the 11th April 2011, French Prime Minister François Fillon banned face veils from being worn in public spaces in France other than Mosques, at home or when travelling as a passenger in a car. On 18 August 2016, Prime Minister Manuel Valls supported bans on Burkini swimwear which had been imposed in several French towns.

In October 2017, France introduced an Anti-Terrorism Bill which authorised power for officials to search homes, restrict movement and close places of worship. The concept behind this bill has been commended by a United Nations human rights expert who also, on the contrary, highlights the negative influence this may have over religious freedom. Additionally, Fionnuala Ni Aolain has raised concerns regarding the reinforced marginalisation of Muslims in France through the introduction of the bill.

In May 2019, France voted to ban Islamic headscarf wearing mothers from attending school trips. This strengthens the war against Islamic dress in France which has developed through the original Burqa and Burkini ban, further emphasising the discriminatory approach of French politics in relation to Islam.

Anti-discriminatory legislation in France:

Discriminatory acts against religious groups in France are denounced by legislature which promotes equality. Some legislation and political groups which address the issue of discrimination against religious freedom in France include:

 Declaration of the Rights of Man and of the Citizen

“Article 10 – No one may be disturbed for his opinions, even religious ones, provided that their manifestation does not trouble the public order established by the law”.

The Preamble of the Constitution of 1946

“France shall form with the peoples of her Overseas Territories a Union based upon equality of rights and privileges, without distinction as to race or religion”.

Case Laws depicting discriminatory behaviour of France:

  1. The most notorious Holocaust denier in France, however, is Robert Faurisson, a former professor of literature at the University of Lyon. Faurisson has been prosecuted on several occasions for his public statements and publications denying the Holocaust. In 1983, Faurisson was fined and given a three month suspended sentence for “racial defamation” after making remarks on a radio show supporting Holocaust denial. In 1990, Faurisson gave an interview to a far-right magazine where he described the gas chambers as a “myth” and was thereupon charged under the Gayssot Law. He was convicted and sentenced to a 250,000 franc ($50,000) fine of which 100,000 francs ($20,000) was suspended. Faurisson appealed his conviction all the way to the European Court of Human Rights, which upheld the Gayssot
  2. In LICRA v.Yahoo! Inc., a French Jewish student group, Ligue contre le racisme et l’antisemitisme et Union des etudiants juifs de France, obtained a court order in 2000 ordering Yahoo! to modify its website so that users in France are denied access to that portion of the site listing auction sales of memorabilia from the Nazi period. The French court found that the availability of such items in France through the Internet, even though the sales were conducted in the United States, to be in violation of the French law cited above, the Article R645-1,of banning the public display of Nazi symbols.Yahoo! did not appeal the French court decision but instead brought a separate action in the United States seeking to bar its application in the United States on the grounds that it violated the First Amendment. The lower court granted Yahoo!’s application, but a federal appellate court in 2006 reversed and dismissed the case on the ground that American law cannot regulate French criminal legislation when it is applied in France.
  3. In the case of Norwood v. UK Here, there was a poster depicting the Twin Towers that were destroyed in the 9/11 attacks with the caption “Islam out of Britain – Protect the British People”. The ECtHR held that the poster did not enjoy the protection of Article 10 because it fell within the ambit of Article 17: “The words and images on the poster amounted to a public expression of attack on all Muslims in the United Kingdom. Such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination. The applicant’s display of the poster in his window constituted an act within the meaning of Article 17.
  4. In the case of Garaudy v. France, it was held that:, “There can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does in his book, does not constitute historical research akin to a quest for the truth… Such acts are incompatible with democracy and human rights because they infringe the rights of others”
  5. In the case of Alain Soral, one of France’s most prominent far-right provocateurs has been sentenced to one year in jail for denying the Holocaust. The 60-year-old was also ordered to pay back €6,000 ($6,780) in legal fees to the four anti-racism NGOs that sued him on behalf of the government. He was punished for questioning crimes against humanity, which is a crime in France under the Gayssot Act, and for ‘injure raciale’, or “racial insult.”
  6. In the case of ‘E.S v. Austria’, The European Court of Human Rights held that the Austrian courts had appropriately balanced the rights to freedom of religion and expression by convicting a woman for “disparaging religious doctrines” after she held a series of seminars in which she described Islam prophet Muhammed as a paedophile. The woman argued that her rights under Article 10 of the European Convention on Human Rights had been infringed.  Relying on its margin of appreciation doctrine, the Court ruled that the domestic courts had been right in holding that the interference with the right of freedom of expression was justified to protect the peaceful co-existence of different religions in society.
  7. In the case of ‘Lehideux and Isorni v. France’, the European Court of Human Rights, ruled that the protections in Article 17 (prohibition against abuses of rights) could restrict the right to Freedom of Expression granted under Article 10 of the European Convention on Human Rights.
  8. In the case of ‘Gündüz v. Turkey’, no. 35071/97, Judgment of 4 December 2003, § 41. A broader approach to Article 17 was inaugurated in 2003, when the European Court held that ‘there can be no doubt that concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention’

Last month, French President Emmanuel Macron divulged the arrangement of a progression of firm stance measures to shield France’s mainstream esteems against what he named as Islamic “radicalism.” Saying, “Islam is in emergency everywhere on the world,” he incited reaction from Muslims around the world. While his antagonistic political manner of speaking against Islam has expanded polarization in France, two Muslim ladies wearing headscarves were consistently stabbed in a recreation centre under the Eiffel Tower. The assailants were yelling bigoted slurs, for example, “dirty Arabs,” while putting their blades in their bodies. The French police didn’t record the assault as a disdain wrongdoing. Macron didn’t discuss it. In excess of 1,000 Islamophobic occurrences occurred in France just in 2019, including 70 actual assaults; in any case, the French government kept on disregarding these wrongdoings.

Meanwhile, a German Chancellor Angela Merkel, talked of free speech in a way that should be heard by all European leaders. She said, “We have freedom of expression in our country. For all those who claim they can no longer express their opinion, I say this to them: If you express a pronounced opinion, you must live with the fact that you will be contradicted. Expressing an opinion does not come at zero cost. But freedom of expression has its limits. Those limits begin when hatred is spread. They begin when the dignity of other people is violated. This house will and must oppose extreme speech. Otherwise, our society will no longer be the free society that it was.”

In France, for example, one can be condemned to jail for denying the Holocaust. Moreover, homophobic scorn discourse is progressively denied, and even enemy of premature birth discourse is every now and again precluded. However, strangely, hostile to Islam discourse has become nearly the centre of free discourse in Europe. Albeit Western majority rules systems advocate that minorities must be shielded from extraordinary discourse, it isn’t just extreme right gatherings that set the pace of outrageous or disdain discourse toward Muslims. Against Muslim prejudice, scorn and separation toward Muslims in Europe have been expanding among the radical and anti-extremist circles, which legitimize their propensity with the case of ensuring Western qualities and safeguarding secularism. In that manner, they believe that they won’t leave their fingerprints and they can shroud their Islamophobic inclination.

Blasphemy was annulled in numerous European nations, where their predecessors experienced the unforgiving disciplines of the greatness of the congregation for a very long time. It is justifiable why they don’t care for the word itself. All things considered, it must be seen that Prophet Muhammad isn’t just sacrosanct yet extremely valuable to all Muslims. Numerous Muslims grasp secularism dissimilar to the fanatics, but the prophet is significant to them. They are simply requesting their values to be endured simply like they are expected to endure Western values.

Offending Muslims, irritating their religious sentiments and criticizing Islam isn’t simply words; they likewise trigger feelings of outrageous aversion, loathing, severe dislike and disdain, which in the long run lead to detest wrongdoings. As Merkel stated, “freedom of expression has its limits. Those limits begin where hatred is spread.” If just European leaders tuned in to themselves…

 

 

 

 

 

 

 

 

 

 

 

References

  1. Janssen, Esther (2009). “Limits to expression on religion in France” (PDF). Agama & Religiusitas di Eropa, Journal of European Studies, Volume V – nr. 1, 2009, pp. 22–45.

2..European Convention on Human Rights art. 10, Nov. 4, 1950, https://www.echr.coe.int/Documents/Convention_ENG.pdf,

  1. Paolo Lobba, Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime, European Journal of International Law, Volume 26, Issue 1, February 2015, Pages 237–253,https://doi.org/10.1093/ejil/chv003

4.Constitution du 4 Octobre 1958 [Constitution of 4 October 1958] (2009), Preamblehttps://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006071194,

  1. Code pénal [C. Pénal] [Penal Code] https://perma.cc/Q597-7BYC.
  2. Patrick Wachsmann, La liberté d’expression[Freedom of Expression], inLibertés et droits  fondamentaux [Freedoms and Fundamental Rights] 496, 506 (Rémy Cabrillac ed., 2013), bibliographical information at https://lccn.loc.gov/2013479325.
  3. https://qz.com/1595792/holocaust-denial-in-france-alain-soral-sentenced-to-a-year-in-jail/
  4. 8. Judgment of Lehideux and Isorni v. France http://hudoc.echr.coe.int/eng?i=001-58245
  5. 9. https://globalfreedomofexpression.columbia.edu/cases/faurisson-v-france/
  6. 10. https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-187188%22]}
France’s discriminatory yardstick for freedom of speech

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