Forum du Parti Pirate

Who's Afraid Of Freedom Of Speech?


Paris, July 21, 2009.


While fear and intolerance have undoubtedly always been around
in our civilizations, it is hardly ever a good sign when politicians
themselves can no longer hide how afraid they are of letting their
citizens speak their mind. In this regard, French politicians may
consider themselves lucky, for the law provides them with convenient
ways of silencing the voices of discontent.

In a 2008 article[0], British journalist Adam Sage noticed a
curious trend that is seemingly affecting the French police, if not
the society as a whole: "the crime of outrage[1], or insulting a
public official [...]," he wrote, "dates from Napoleonic times and
is designed to protect “the dignity ... of a person charged with a
public service mission”. [It] carries a maximum sentence of six months
in prison and a €7,500 fine" — where as insulting a regular citizen is
only punished with a €35 or €45 fine[2].

Sage also noted that "the number of prosecutions for insulting police
officers and other civil servants has risen from 17,700 in 1996 to
31,731" in 2007. A 42% increase within a decade (and it is has yet
increased again since 2007); this number is particularly significant of
how the police proceeds nowadays. As of 2002, when N. Sarkozy became
minister of the Interior, police forces were given consequent numbers,
precise goals to be achieved year after year: 26 000 illegal immigrants
deported yearly, a crime-solving rate of 40%, and so on. In this
regard, the Offence of Outrage appears to be convenient on several
levels: finding the perpetrator is hardly a problem, neither is producing
"evidence" (the officer's word, even without witnesses, is enough); the
officer may also ask for up to €150 monetary damages – without even
having to attend trial. Eventually, this is also a convenient way to
cover up police violences. These have steadily been increasing,
recently leading Amnesty International to report that "French police are
above the law"[3].

While the Offence of Outrage is more likely to be (ab)used by
policemen (19 cases out of 20 involve a police officer), it is far
from being the only legal threat that Freedom of Speech has to face in
France. In fact, the very same law that defined Freedom of the Press in
1881 also defined and prohibited several public forms of insulting speech.
While these parts of the law has been around for quite a long time, they
have never been used as regularly as they are now, by the current
generation of French politicians. As an example, a lawyer was
unprecedently sued by Sarkozy's 42-years-old Minister of Justice
R. Dati, about a statement he had made while pleading in court.

For such politicians, one could hardly imagine a scarier place than
the Internet. French 45-years-old Secretary of State N. Morano, who
has repeatedly stated how much she "hates the Internet", has recently
filled a complaint for "public insult of a member of a ministry", about
a video comment on French YouTube-like Dailymotion platform. Having
been tracked down and heard by a special police unit, the author appeared
to be a 49-years-old, who had merely quoted half a sentence ("hou, la
menteuse" – booh, she's a liar) from a French popular song... Another
symptom of the fear from the Internet is that, while the period of
prescription for insulting speech is usually of three months, members of
the government have officially made plans[4] to make it longer (up to
one year) for online-published offences.

It must be noted than the the name of French President N. Sarkozy
(54 years old) tends to appear in more and more cases of Outrage or
Insult. This may be explained by several reasons. To begin with, Mr
Sarkozy himself, as the Minister of Interior and then as the President,
has never been known to speak without ever any rudeness, for instance
when (as a minister) he referred to lower-class suburban young people as
"racailles" (scumbags), or when (as the President), he once, at a public
convention, replied to a citizen who wouldn't shake hands with him:
"casse-toi, pauv' con" (which could be roughly translated as "piss
off, you jerk").

Yet, President Sarkozy hardly accepts being treated in ways he finds
undignifying. One year after his election (where hardly any of his
predecessors had ever filled any complaint), he was already filling his
sixth lawsuit, over a humorous fake voodoo-doll in his image[5]. On
another occasion, a citizen was sued (and condemned) for having
vaguely shown, in a crowded street the President's car was about to
pass by, an A4-sized paper sheet where he had written "casse-toi
pov'con", referring to the aforementioned anecdote.

A specific criminal charge actually does correspond to this latter
case: among other things, the 1881 law on Freedom of the Press also
institued a very particular kind of offence: the "Offence to the
President of the Republic"[6], that carries a €45 000 fine (in this
specific case, the defendant was fortunately "only" condemned to a €30
fine). This charge has not been pressed for the past 35 years, and
even then, was used quite scarcely; in fact, pretty much everyone had
forgotten that such an ancient-minded law might even still exist[7].

Having been revived, today it also gives policemen, as with the
"Offence of Outrage", a chance to demonstrate how zealous they can be.
In the same month, three high-school students were also arrested and
charged with the same offence, for having displayed a caricature of
the President on a wall. More recently, a 47-years-old man was arrested
in a train station, where he had criticized police officers doing an
identity control by saying out loud: "Sarkozy, I see you!" – in both
of these latter cases, charges were eventually dropped by the judge.

What may actually be more disturbing is that, even though the President
has a right to fill complaints like any other citizen, and even more
so, he his yet provided with a special legal status, that grants him
total legal immunity and prevents him from being heard before any court,
as a witness, let alone as a defendant. For instance, he must not be
forced to even pay a parking ticket, or alimony to his ex-wives.

This law was built by former President J. Chirac for his own benefit[8],
and now poses a legal and ethical problem to the whole Justice system
in France. As an example, French laws require that a fair and balanced
trial requires some kind of an equilibrium between the defendant and the
plaintiff: if the latter loses the case, he's generally condemned to pay
the trial's "dépens" (expenses), and the defendant may even sue him in
return if he is to prove that the complaint was abusive in the first
place. This can not possibly happen when the plaintiff is the President.

While so far there has always been judges to accept such abnomalities,
this might be changing as more and more French magistrates are criticizing
the way the government (at least some of its members) uses their courts[9].
"Everywhere where civil society expresses itself," a French Union of
Magistrates stated[10], "the government resorts to Justice to
discourage any campaign and silence any public form of criticism.
Criminal justice is now mainly used as a tool, not to supposedly fight
delinquency, but actually to intimidate citizens and dissuade them from
taking stands or action."

There is a word for that: bullying. Seeing how well this word fits
the current French government certainly does not feel comforting – but
then again, comfort is not what it takes for a democracy to stay strong.



Valentin Villenave (born 1984) is a French composer,
a Free Software activist and a member of the Pirate Party.


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REFERENCES

[0] http://www.timesonline.co.uk/tol/news/w ... 402389.ece
[1] http://www.legifrance.gouv.fr/affichCod ... e=20090721
[2] Yet the very first article of the French Constitution, as does the
seventh article of the Universal Declaration of Human Rights, states that
all citizens must be treated equally before the law.
[3] http://www.time.com/time/world/article/ ... 49,00.html
[4] http://www.senat.fr/leg/ppl08-004.html
[5] http://www.nytimes.com/2008/10/30/world ... 89602.html
[6] http://www.legifrance.gouv.fr/affichTex ... e=20080701
[7] Possibly in direct violation of the Article 10 of the European
Convention on Human Rights, unless one sees the dignity of the
President as an "interest of national security, territorial integrity
or public safety". See
http://en.wikipedia.org/wiki/Article_10 ... man_Rights
[8] http://www.telegraph.co.uk/news/worldne ... udges.html
[9] Such a criticism is a rare thing in France, where magistrates (as well
as policemen) have a legal "obligation of reserve" and put themselves at
risk by publicly taking a stand against the government's choices.
[10] http://www.syndicat-magistrature.org/sp ... article810

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