Who’s Afraid Of Freedom Of Speech?

[!sommaire]

Freedom of Speech and Social Peace:
the Lost Equilibrium

Whilst every country undoubtedly has its share of legal peculiarities, several French
laws provide the authorities with handy legal weapons to use against
dissenting citizens. There are several types of crimes and offences,
ranging from insulting speech or defamation to outrage. While these
laws are all different and have all been around for one or two
centuries, they do have something in common: they have never been used
as regularly as they are today.

During the past decade, many French politicians in their 40s (especially
the so-called "new generation" in President Sarkozy’s administration)
have shown that they are quite willing to use those laws to protect their
public image or reputation. In addition to the "usual" lawsuits against
tabloids, they use these laws in surprising ways. For instance, last year
Ms. Dati (then Minister of Justice) did not hesitate to sue a lawyer over
a statement he had made while pleading in court.

In this regard, the Internet is a crucial battleground. French Secretary
of State Mrs. Morano has repeatedly stated how much she "hates the
Internet"; she recently filed a complaint for "public insult of a
member of a ministry," over a three-words video comment on French
YouTube-like Dailymotion platform. Having been tracked down and heard
by a special police unit, the perpetrator appeared to be a 49-years-old
housewife, who had merely quoted half a sentence from a popular song: "ouh,
la menteuse" (duh, she’s a liar).
Members of the government have also made official plans to
quadruple the statute of limitation (from three months to one
year) in order to facilitate attacks on online documents and web
pages. Such a change, if it were to pass, would create an
unprecedented discrimination in the French criminal law.

President Sarkozy himself (who is known to monitor
the Internet very closely) has already been in court an impressive
number of times – although it was so far most uncommon for a French
president to fill any lawsuit. Anybody who uses his image,
particularly in a humorous way, is likely to get sued - this includes
advertisers, tee-shirt makers (not to mention the now-famous fake
voodoo-doll case) but also regular citizens and even high-school
students.

Yet, somewhat ironically, Mr Sarkozy himself has never been known to speak
without any rudeness. For example, as a minister, he referred to
lower-class suburban young people as "racailles" (scumbags) [1], and
as the President, he publicly 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"). Months later, a citizen was sued (and
condemned) for merely showing a sign with this quotation in a crowded
street when the President’s car was about to pass by.

A specific criminal charge actually does correspond to this latter case.
The 1881 law which defined Freedom of the Press in France curiously also
instituted the offence of insulting speech... alongside with a more
peculiar kind of offence: the "Offence to the President of the
Republic", that carries a €45 000 fine [2]. This charge had not been
pressed for the past 35 years, and even then, was used quite
scarcely [3].

What may actually be more disturbing is that, while the President
has a right to file complaints like any other citizen,
he is provided with a special legal status which grants him total
legal immunity and prevents him from being heard before any court as a
witness, let alone as a defendant. This law was created by former
president Mr. Chirac for his own benefit, and now poses a legal and ethical problem
to the whole Justice system in France.
Indeed, French law states 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 is generally condemned to pay the "dépens"
(expenses) of the trial, and the defendant may even sue him in return
if he is to prove that the complaint was abusive in the first place.
This cannot happen when the plaintiff is the President.

Such spectacular cases are but a symptom of a general trend that is
affecting the French society as a whole. There is a growing gap
between citizens and their authorities in general. This was noted by
Adam Sage, a British journalist, in 2008: "the number of prosecutions for
insulting police officers and other civil servants has risen from 17,700
in 1996 to 31,731" in 2007. "The crime of outrage [4]", he added, "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" — whereas insulting
a regular citizen is only punished with a €35 or €45 fine [5].

While the law theoretically includes all civil servants, 19 cases out of
20 involve a police officer. Are French citizens particularly
malevolent towards authority? This may be (partly) true, but other
explanations are to be considered. During the last decade, it has been
made clear that the police’s role was more about punishing crimes than
preserving social peace; this was emphasized in 2002 when Mr. Sarkozy
became the Minister of the Interior [6]. Police forces have been given
precise goals, such as numbers to achieve year after year: 26 000
immigrants to be deported by December, a crime-solving rate of no less
than 40 per cent, 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. This is also a
convenient way to cover up police violence - anybody accusing the
police of such acts can be charged as an "offence of outrage". These
charges (whatever the actual reasons) have steadily been
increasing, recently leading Amnesty International to report that
"French police are above the law".

To say the least, climate is not getting any less tense between French
citizens and the authorities [7]. Important riots have taken place
(mostly in the suburbs) on several occasions these past few years, even
though these are getting less and less media (and political) attention.
This is deliberate: as of this writing, the new Minister of the Interior
Mr. Hortefeux had just filed a lawsuit against citizens whose testimony
had been quoted in a newspaper. These citizens had witnessed a car accident
involving a police vehicle, and blamed the policemen for the death of a
young man.

President Sarkozy seems to have become the personification of all police
forces in France, not only to citizens but
also to policemen themselves. His name appears in more and more
reported cases of outrage or insult. Prior to his election, a citizen
who was arrested for having mentioned Sarkozy’s name testified that the
officers said, while clubbing him: "consider yourself lucky that he
isn’t the President!" More recently, a 47-years-old man was arrested
in a train station, where he had criticized an ongoing identity control by
saying out loud: "Sarkozy, I see you!" In this later case, charges were
eventually dropped by the judge.

While French magistrates, as well as policemen, are legally bound to an
"obligation of reserve", an increasing number of them chose to put
themselves at risk by publicly taking a stand against this political and
societal evolution. In a press release, a Union of magistrates
stated: "Everywhere where civil society expresses itself, 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." Similarly, policemen report
that their job is getting harder and harder, constantly having to face
the people’s spreading hostile and defiant attitude.

Where can such a mixture of imbalances and frustrations lead? Only time
will tell. What is certain, however, is that the future of the French
democracy will strongly depend on the answer to that question.