Forgetting liberté: France’s new security law imperils freedom of expression

by | Dec 8, 2020

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About Daniil Ukhorskiy

Daniil is a graduate of the BA (Jurisprudence) and BCL at the University of Oxford, currently working as a Pro Bono Trainee at DLA Piper. In the future, he hopes to qualify in England as barrister with a particular focus on human rights, public international law, and environmental law.

Citations


Daniil Ukhorskiy, “Forgetting liberté: France’s new security law imperils freedom of expression” (OxHRH Blog, December 2020), <https://ohrh.law.ox.ac.uk//forgetting-liberte-frances-new-security-law-imperils-freedom-of-expression> [Date of access].

On Saturday 21 November, despite a nationwide lockdown, thousands took to the streets across France to protest the loi de securité globale (global security law) being debated in the General Assembly. The original Bill was largely uncontroversial, with most provisions simplifying existing policing law. The government took this opportunity to tack on the highly divisive Article 24, a provision limiting the rights of people to film police.

Rights groups, civil society, and journalists have expressed their concern over the Bill and its implications for civil liberties. France’s human rights ombudsman, Claire Hédon, noted that she was “particularly concerned” about implications for freedom of expression and the right to access information and called for the “useless” and “harmful” Article 24 to be struck from the Bill.

Phones away

Article 24 creates a new criminal offence. The distribution of images of law enforcement personnel with an intention to cause physical or psychological harm is punishable by a fine of 45,000 euros.

As a prima facie limitation of the freedom of expression, guaranteed by Article 10 of the ECHR, the provision must be assessed according to the three tests that establish lawfulness of interference. Particularly problematic in this case will be whether or not the measure is “necessary in a democratic society”.

For an interference with Article 10 to be deemed necessary, a Member State must show that there was “pressing social need” for the measure. Defending the provision on the floor of the General Assembly, interior minister Gérald Darmanin stated that “if the freedom of the press can be attacked, so can the police”. Despite the government’s bluster on the need to protect law enforcement, it has not adduced any evidence of police being targeted based on publicised images or videos. Instead, it seems that the government is looking to suppress criticism of the French police online. A Member of Parliament defending the Bill claimed that the measure seeks to target “hate on social media”.

The necessity test is also subject to a standard of proportionality: it must be the least restrictive measure possible to fulfil its aim. The government has gone to great lengths to emphasise that Article 24 is not a ban on filming police officers, pointing to the high standard of mens rea. In practice, the intention standard is vague and difficult to prove. Responding to concerns, Minister of Justice Éric Dupont-Moretti conceded that the law responds to “acts and facts” and floundered on defining intention. Darmanin, on his part, seemed to suggest a lower standard (“intention to cause nuisance”) than the one contained in the Bill.

Hear no evil, see no evil

As is often the case, the peaceful demonstrations on Saturday were violently dispersed by the CRS – heavily armed riot police. Tear gas was used against a group of fifty journalists. Footage of the police action was distributed widely on social media. Smartphone cameras have led to revolutionised police accountability worldwide and authoritarians have sought to crack down on the practice wherever possible.

Speaking with Libération, attendees of the demonstration on Saturday made it clear that they saw their phone cameras as a shield from police violence. A longstanding gilets jaunes activist commented that “without the videos, no one would know what happened during our marches, we would have had no way to defend ourselves from reprisals by the police”.

The message from Macron’s government is clear. Facing a new conversation on police brutality, a traditionally taboo topic in France, he has chosen to bury his head in the sand. Earlier this year, the government sought to ban the use of a chokehold technique that resulted in the death of Adama Traoré, only to back down following pressure from police unions.

Amnesty France’s advocacy officer has called Article 24 “liberticide”. Rights groups are concerned that regardless of the breadth of application of the law, it will create a chilling effect that will limit police accountability, a risk also highlighted by Claire Hédon.

The violent practices used by French police were finally being called into question. Slipping back into denial, Article 24 of the global security law violates the right to freedom of expression and the right to information and is a step back in the French conversation on police brutality.

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