What does French law really say about free speech?
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France is prosecuting over 50 people for "defence of terrorism" following comments praising last week's killings in Paris or for mocking the victims. Police detained controversial comedian Dieudonné M’Bala M’Bala on Wednesday over a Facebook post.
Dieudonné will face judges on 4 February on charges of "apologie du terrorisme", or expressing approval of terrorism, for posting a comment in in which he said he felt like "Charlie Coulibaly", a combination of the phrase "Je suis Charlie", which has become the slogan of support for the 12 people shot dead at the headquarters of the Charlie Hebdo magazine last week, and the name of Amedy Coulibaly, the gunmen who killed a police officer and four customers at a Kosher supermarket.
As the arrests come a few days after hundreds of thousands of people turned out for rallies and marches in support of freedom of the press, it is useful to look at what French law says about free speech.
The notion of blasphemy does not exist in the French legal system, but it is illegal to incite hatred and it is illegal to defend crimes against humanity. "Apologie du terrorisme", or expressing approval of terrorism, is also illegal.
Paris-based attorney Aurelien Hamelle, who specializes in libel and privacy cases, answered some questions:
LISTEN: Lawyer Aurélien Hamelle on French free speech laws, in the context of Charlie Hebdo and Dieudonne
Under what laws can people be prosecuted for posting comments praising terrorist attacks?
This is all based on one of the oldest pieces of French legislation: the law of 1881. It is the one law in France that deals with freedom of speech. It's in a way the French First Amendment, in that it provides for a broad principle of freedom of speech, and then several exceptions.
Among these exceptions you will find libel, defamation, slander and "apologie du terrorisme" among others. This could be translated as promoting [or defence of] terrorism.
The 1881 law does not specifically provide for "apologie" or "incitation", which is promoting or inducing someone into terrorism. It does provide for a broad offence of promoting or inducing someone into committing a crime.
Does that leave a lot up to the judge?
In a way it does leave quite a lot of leeway to judges and courts to interpret this. And there has been a very consistent interpretation: to interpret the principle of freedom of speech in a broad way, with the exceptions - namely "apologie du terrorisme" - interpreted in a very narrow, restrictive way. That's what they've done for nearly 150 years.
After events like the attacks in Paris last week, which bring up emotions and anger, will we see the law be applied not quite as narrowly?
I would not think so. I think the upheaval comes from public opinion, the press and in the political sphere. It is clear that when [these cases] go to court, I do not believe that courts will have a different approach.
Judges who deal with these offences are specialized, and they will not change the way they approach the law. As always they will balance the interests: here they will balance the prevailing interests of freedom of speech with interests such as the protection of public order, and protecting the victims (so that they do not feel under duress by extremist words).
Judges will balance the interests, as they always do. But freedom of speech usually weighs more than the others.
Where is the legal distinction between Charlie Hebdo, a newspaper that publishes frequently offensive cartoons [and was the target of the attacks], and Dieudonné M'bala M'bala, who has been prosecuted for anti-Semitic remarks?
Some say that there is an apparent discrimination or difference of treatment between magazines like Charlie Hebdo and humourists like Dieudonné. Legally this could not be more wrong.
If you look at past court rulings on Charlie Hebdo, one of the main criteria used by the court is that when Charlie Hebdo publishes something that on its face is offensive, [the fact that] it is a satirical magazine and it is clear that it exaggerates and caricatures means it cannot be taken seriously.
They cannot be taken seriously by a reasonable person; therefore, they are a satirical magazine, and cannot be convicted for publishing caricatures of the Prophet [Mohammed], or about the Pope. Most of the time they have been acquitted because of that.
The situation is different from a legal standpoint for Dieudonné. There are a lot of different offences under the French legislation of 1881, and in the past he has been convicted by courts in relation to slander, namely in relation to anti-Semitism.
Legally speaking, one of the distinctions that courts use to convict or acquit a defendant is whether or not speech is meant to be taken seriously, and whether or not it promotes violence.
If you look at the Charlie Hebdo caricatures in themselves, they do not call for any kind of violent means. If you look at Dieudonné’s speech, it is something that goes to promoting, even in a humorous way, violent acts.
As for the case against Dieudonné’s today: Could he be convicted? The court could say that it was free speech, and that he was reacting to the news. That provides more leeway for people to comment.
It could go either way if the case were to go to court.