FREEDOM OF EXPRESSION ON INTERNET
Freedom of expression is protected by article 11 of the Declaration of the Rights of Man and of the Citizen of 1789 as well as by article 10 of the European Convention for the Protection of Human Rights (i).
Freedom of expression is not unlimited and is framed by article 4 of the Declaration of Human Rights and of the Citizen which states that “Freedom consists in being able to do anything that does not harm others” (ii).
I) The principle of freedom of expression
Freedom of expression can only be regulated by the legislative power (and not by the Government) and any sanctions can only be pronounced by a judge (and not by an administration).
However, exceptions to this principle remain:
• The Superior Audiovisual Council – administrative authority – controls television broadcasts,
• The administration, and in particular the mayor, can prohibit the release of a film.
There is however, notably under the influence of the European Court of Human Rights, a rise in the freedom of expression:
• In cinematographic matters: in the “Grâce à Dieu” case in which a priest was presented as a pedophile, freedom of expression prevailed over the presumption of innocence of the priest,
• In terms of artistic creation: the freedom of artistic creation, and therefore of expression, took over copyright in the Klasen case. In this case, Mr. Klasen considered that the unauthorized insertion of original photographs pursued a critical goal and fell within his creative freedom. The Court of Cassation weighed the interests of the copyright holder against the artist’s creative freedom and rejected the claim based on copyright infringement.
II) Limits to freedom of expression
Freedom of expression can only be framed in a proportionate manner within the framework of a proportionality test. In addition, the 1881 act on press freedom constitutes the only receptacle of the rules coming to regulate the freedom of expression. Citizens therefore benefit from a double level of protection of freedom of expression. It is therefore not possible to argue the mere existence of harm due to the expression of an idea. It is necessary, in order to obtain the condemnation of the person who expressed a message, to respect these two criteria.
Consequently, and subject to a proportionality check carried out on a case-by-case basis, the law of 1881 sets limits and in particular:
- Defamation: defamation, quite common on the internet and which constitutes approximately 80% of so-called press offenses in France, consists of an allegation or imputation of a fact which undermines the honor and consideration of ‘a person. Defamation can be racist, sexist or homophobic. It is necessary that a specific person, whether natural or legal, be attacked (as such, an attack on lawyers would not constitute an act of defamation in that it would be too general). The target of the defamation must be alive (failing this, the offense only exists if the author had the true and proven intention to undermine the honor or the consideration of the living successors (which was the case in the so-called Grégory case.) Rights holders may use the right of reply.
In the so-called Fanfan la Tulipe affair, the critics had written that it was a “cannonade of jokes from obviously racist counters”, “thick bullshit”, “xenophobic nullity”. The press chamber held that the attack was aimed at the work and not the author. Attacks on honor and consideration are interpreted objectively.
- Social networks and discredit :
A young woman wanted revenge on her ex-lover and her ex-partner who had both left her. The young woman had used the identity of the ex-lover and created several profiles on social networks as well as FB pages aimed at discrediting him. She harassed the second since their breakup with hateful messages and did the same with those around him. The Paris Court of Appeal took into account the number and content of articles published and ordered the removal of the content.
- Insult: an insult is a word, a writing, any expression of thought addressed to a person with the intention of hurting or offending her. The insult will be sanctioned more harshly if it is a public insult. As such, insults committed on social networks are more severely punished if the page is accessible to the public or to friends of friends, or even to a large number of “friends” because, in these cases, it will be public insults.
Presenting a company as an “association of criminals” constitutes an insult (TGI Paris, April 27, 2006).