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

Privacy Law and Criminal Law

Whoever still believes that privacy laws are touchy-feely should read about this case.

Four Google executives are on trial in Italy: they are accused of having allowed a video of a teenager being bullied by students in front of others students to be shown on Google Video.

The video, taken using a cell phone, was later posted on Google video. It was taken down less than 24 hours after the family of the victim made the request, two months after the video was put online.

It is probably the first case where a privacy executive is tried in a criminal court for his company’s actions. The charges are defamation and failure to exercice control over personal data. The accused are facing up to three years in jail…

Once again, the question of the responsability of content-hosting sites arises. A Google spokeswoman wrote earlier this year that "Seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet."

Last week, Jeremy Doig, an American engineer, testified that Google video is controlled from the United States, raising thus the question of court jurisdiction. Which state should have jurisdiction over the case? The U.S. because Google Video servers are in the United States? Italy because, following the « effects test » set by the SCOTUS in Calder v. Jones, 465 U.S. 783 (1984): when a party causes result to occur in another state, may that party be subject to the laws and jurisdiction of that state? The Calder test has been applied by an American court in a defamation case.

Do we need an Internet ius gentium ?

Wikipedia & French Online Defamation

Here is a comment (in English) by Brad Spitz, a French lawyer, of last week's French court decision (in French), ruling that Wikipedia cannot be held responsible for defamatory content posted by its users (see here.)

Nannies, Blogging, and Section 230

The New York Times has an interesting article today about isawyournanny , a blog where people can post about a “nanny sighting” that triggered them to share their experience, whether the nanny was a regular Mary Poppins or abusive to the child.

As pointed out in the article, posting on the site raises both privacy and defamation issues. “Jane Doe” , who runs the site posted this disclaimer. Under common law, a distributor is liable where he knows or has reason to know that the content he distributes is defamatory. But section 230 (c) of the CDA states that providers of interactive computer services shall not be treated as the publisher or speaker of any information provided by another information content provider, and are immune from liability for content created by third parties.

See the EFF Internet law Treatise on section 230 here.

A content provider is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet." A content provider is not protected by the section 230 immunity. Here, the site encourages to "report bad nannies."

In Fair Housing Council of San Fernando Valley v. Roommates.com LLC, Judge Kozinski, writing the opinion for the 9th Circuit wrote last May:

"Imagine, for example, http://www.harrassthem.com/ with the slogan “Don’t Get Mad, Get Even.” A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others – all to be posted online for a fee. To post the information, the individual would be invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mothers’ maiden name, sexual orientation, drinking habits and the like. IN addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano. The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would. By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the targets, this website operator might well be held responsible for creating and developing the tortuous information. Carafano did not consider whether the CDA protected such websites, and we do not read the opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortuous and unlawful communications of others."

If isawyournanny encourage denouncement, and indeed it is the site purpose, even though a few posts praise wonderful nannies, should this site still be protected by section 230? The 9th Circuit seems to answer in the negative.

Reporting child abuse is certainly something everybody should do if witnessing it, but should we not report it to the police? The New York Times article describes an instance when a woman witnessed a nanny hitting a child repeatedly. She followed the nanny for 30 minutes until she entered an apartment building, then reported what she saw to the doorman of the building. If witnessing a child being hit, isn't more efficient to call 911, and report it immediately?

Condamnation de Philippe Besson et de Grasset Pour Atteinte à la Vie Privée

Philippe Besson et son éditeur, Grasset, ont été condamnés pour atteinte à la vie privée et diffamation par le TGI de Paris. Ici , ici, et là. Le Monde rapporte que l'écrivain et son éditeur ont été condamnés à 15 000 euros de dommages et intérêts pour atteinte à la vie privée de Monsieur et Madame Villemin, et 20 000 euros pour diffamation envers Madame Villemin.

Le livre de Philippe Besson, L’Enfant d’Octobre, traite d’une manière romancée «L’affaire Villemin ».

Unwanted Celebrity: Mr. Jewell Dies

Richard Jewell died on Wednesday. Mr. Jewell helped prevent a bomb attack at the Atlanta Olympics in 1996, but became later a suspect in the same bombing, before being cleared of this suspicion. His New York Times obituary notes that he was commanded last year by the Georgia governor for helping saving lives that day.

Mr. Jewell became unwillingly famous after that episode, and his life was turned upside down by that unwanted celebrity. He sued for defamation the Atlanta Journal-Constitution, that had reported that he may have planted the bomb himself. In Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175 (Ga. Ct.App. 2001 ) the court held that Mr. Jewell was indeed a "voluntary limited-purpose public figure", and is thus a public figure, and the actual malice rule(NY Times v. Sullivan ) was applicable in his case.