Offending the French President is Still a Crime

A recent French bill proposes to abrogate article 26 of the 1881 French Freedom of the Press law, which makes it a crime to make an “offence” toward the President of the French Republic.

The Freedom of Press law is a venerable old lady which regulates the “press” in France, that is, the media, Internet included. It has been modified many times to adapt to new times and new technologies.

Article 26 incriminates “offences” to the President of the Republic, whether the offence is made by «speech, shouts, threats uttered in public places or during public meetings, or by writings, printed materials, drawings, engravings, paintings, emblems, images or any other medium of written words, spoken words, or images sold, distributed, or displayed in public places or public meetings or by any way of electronic communication to the public.” The author of this felony may be punished by a 45,000 euro fine, a rather hefty sum.

This is not the first time that French legislators have tried to abrogate article 26.A French Senator sponsored a similar bill in November 2008. The 2008 Senate bill was never enacted, and the 2010 Parliament bill may very well share the same fate.

Article 26 had been used six times during the 59 years of the Third Republic (1870-1940) and has been used only once during the Fifth Republic, by President Georges Pompidou. It was thus quite dormant and not triggering much attention from the public. However, the current President, Nicolas Sarkozy, has used it several times since his election in 2007. One man was sentenced to pay a 30 euro fine for having held a piece of paper on a route taken by Mr. Sarkozy where he had written “Get lost, you jerk!”, a quote from the much-publicized insult made to another citizen a few weeks earlier by… the President himself.

What constitutes an offence to the President?

The law does not define what constitutes an “offence” to the President. Criminal laws must be strictly interpreted by the French judge (article 111-4 of the French criminal Code). Since what constitutes an offence is not defined by law, the courts have latitude to interpret article 26.

The French Supreme Court (Cour de cassation) defines this crime as any defamatory imputation, which is likely to affect the honor and dignity of the President, whether in his capacity as President, or in his private life. Thus the definition of “offence” certainly does include defamation and insults, but could also include mere jests.

In this regard, the difference between the French law and the American law is really staggering. In the U.S., a public official has to prove by clear and convincing evidence that the libelous statement was made with ‘actual malice’ (New York Times v. Sullivan, 1964). However, Sullivan applies only if the slander at cause was critical of the official conduct of the public official. In contrast, article 26 does not distinguish whether the offensive statement was made against the French President in his official capacity or in his private life, and the President does not have to prove actual malice.

The broad powers of the French President

The representatives sponsoring the new bill explained their motivation as wanting to eliminate what is, in essence, a remnant of the Ancien Régime lèse-majesté crime, which was abrogated in 1830. This crime was the most despicable of crimes when France still had a King, as the French king was sovereign “by divine right.” Any attempt to strike his body was thus also an attempt to injure god. After the French Revolution, the 1791 criminal Code started to refer to this crime as “lèse-nation.” It was no longer the King who is the victim, but the Nation he represented. This new conception of the crime was confirmed in the 1810 criminal Code.

Well, France does not have a King any more, and the French Republic is headed by Presidents directly elected by all voters for five years. However, as a holdover of the Ancien Régime, the French President also has the title of Co-Prince of Andorra, just as the Sun King had in the 17th Century.

When the Freedom of the Press law was enacted in 1881, the President of the Republic did not have broad powers. It was rather the Président du Conseil, a sort of Prime Minister, which was governing the country. The public was able to criticize him freely as article 26 only mentions the President of the Republic.

However, that changed in 1958 when France’s current Constitution, the Fifth Constitution, was enacted under the influence of Charles de Gaulle. The famous General became the first President of the Fifth Republic, at a time when France was still fighting a war in Algeria, and thus the Constitution was written to give broad powers to the President. For instance, article 16 of the Constitution authorizes the President to take measures required by special circumstances, that is if ‘the integrity of [France’s] territory or the fulfillment of its international commitments are under serious and immediate threats, and where the proper functioning of the constitutional authorities is interrupted.” These decisions cannot be checked by the courts: no checks and balances!

It is no longer a crime to offend a foreign head of state under French law

Since 2004, insulting a foreign head of state is no longer in crime in France. The European Court of Human Rights held against France on June 25, 2002 (Colombani and others against France), finding that France had violated the right to freedom of expression as guaranteed by article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Article 36 of the Freedom of the Press law had made it an offence, punishable by one’s year’s imprisonment or a 300 000 francs fine (more or less $60,000) to insult a foreign head of state, a foreign head of government, or the minister for foreign affairs of a foreign government. After the Colombani judgment, France abolished article 36 of the Freedom of the Press law.

The European Court of Human Rights noted in Colombani the similarity of article 36 and article 26 of the Freedom of Press law. Will article 26 be abolished only after, and if, the European Court of Human Rights holds that it violates article 10 of the Convention? I do not know of any case pending which would give the Court the opportunity to do so
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The May 2010 bill is sponsored by Representatives on the left side of the House, and will probably not be able to gain enough support for approval. Let’s hope for a bi-partisan bill which would allow France to honorably abolish artic