European court rejects double standard for freedom of expression in France

Summary The European Court of Human Rights has upheld a French activist’s appeal against a fine for offending the French President when he held a placard with the French equivalent of “get lost, you prick” while the President was at a public event.

Facts

In 2008 at an agricultural show, a dissatisfied farmer refused the shake the French President Mr Sarkozy’s hand. Taken aback, the President uttered a phrase in French which translates to “get lost, you prick”. Mr Sarkozy was chastised in the press and the phrase became a catch cry for socialist activist campaigns. Later in 2008, Mr Eon (Applicant), an activist, raised a placard during with the same phrase during a public event.

While Mr Sarkozy was tried in the court of public opinion, Mr Eon was convicted of causing offence under an 1881 law. Article 26 of the Freedom of the Press Act (law of 29 July 1881) makes it unlawful to “offend” the president of the French Republic in one of the forms listed in the legislation, which includes written forms common to publication in the press. The maximum penalty is 45000 euros.

The trial court was satisfied that the applicant had intended to cause the President offence because, for instance, it reasoned that if the applicant had intended simply to remind the President that calling people names was impolite, his placard would have said something along the lines “its impolite to say ‘get lost, you prick’”. As the law was intended to protect the office of the President, the local court cautioned that the Applicant could not expect to be treated in the same manner as the President. On appeal, the court affirmed that the law was intended to protect the dignity and honour of public representatives and calling the President a “prick” fell squarely within that category.

Decision

Article 10 of the European Convention on Human Rights establishes the right to freedom of expression. Like article 19(3) of the ICCPR, the right to freedom of expression can be subject to certain restrictions or conditions prescribed by law if they are necessary in a democratic society to achieve one of the aims listed in the article – including the protection of public order and the reputation of others.

The French Government argued the law was necessary to protect the reputation of the head of state from verbal and physical attack, which can undermine respect for public institutions. The Court had, on the other, earlier ruled that giving heads of state and public officials special protection against being criticised in the press under these anachronistic French laws (in that case the journalist was accused of false reporting) did not respond to a pressing social need in a democratic society (Colombani v France).

The Government argued that unlike Colombani, the applicant’s comments constituted a personal attack on the President not his politics or governance and did not contribute to informing public discussion. The Government even attempted to distinguish the President’s insult towards the farmer and the applicant’s quip because the President was responding to an individual with a particular disobliging attitude, whereas the applicant was using the phrase to get a rise unconnected with public debate.

It noted also that it was not the only country with these types of laws, citing Spain and other western European nations. The Court, however, appeared to prefer to take guidance on what may be considered necessary regulation of free speech in democratic societies from countries such as Luxembourg, which it noted had repealed its criminal “offence of the head of the government” prohibitions and replaced them with civil penalty provisions.

Striking the balance between freedom of speech and respect for people and institutions is a constantly evolving question in international and domestic law. The Court held in this case that considering the applicant’s recent involvement in political activism, his comments could be taken as political commentary not a personal attack and public figures must tolerate a degree of offence in political discussion because of the importance of free speech. The majority was concerned that imposing a criminal penalty on satirical commentary, could have a particularly chilling effect on public discussion about political and general interest matters. It held that in the present circumstances restricting freedom of expression and imposing a criminal sanction for satirical expression was not necessary and proportionate to achieve a legitimate aim in a democratic society.

Commentary

The term “offence” has become the key battleground and grey area in the debate about freedom of expression both at home and abroad. The High Court of Australia recently split 3:3 on whether it is justifiable to sanction communication by post that is reasonably likely in all the circumstances to cause “offence” (Monis v The Queen [2013] HCA 4 (27 February 2013)). And, public interest in the proposed Human Rights and Anti-Discrimination Bill 2012 centered on clause 19(2)(b), which provided that discrimination included offensive conduct.

The Court did not make a general determination as to whether criminal sanctions for causing offence could ever be justified in a democratic society. However, it may be assumed from the Court’s discussion about the importance of freedom of political expression that protecting the interests and reputation of the state are highly unlikely in a democratic society to justify restrictions on causing mild offence to either the person or politics of a member of parliament.

Exhausting domestic remedies and access to justice

The Court had jurisdiction to consider the matter despite the fact the applicant had not exhausted all domestic remedies because he had been denied access to legal assistance to take the matter to the Cour de Cassation (final court of appeal in France). He did not qualify for legal assistance because his case was not considered to have merit despite the fact it raised clear questions about freedom of expression.

A serious injury

The Court traditionally confines itself to hearing cases where a person has suffered a “serious disadvantage”. The 30 euro fine was suspended and was not objectively serious (the trial judge had taken the Applicant’s limited financial means into account). Nevertheless, the majority affirmed that the subjective perception of the applicant needed to be taken into account and the Applicant had taken the fine as a serious affront to his freedom (particularly when he had adopted the President’s own phrase). This is not directly relevant to Australia’s obligations under the ICCPR as the Optional Protocol to the ICCPR does not impose a threshold of seriousness before an individual in a contracting State is entitled to bring a communication before the Human Rights Committee.

This decision is currently only available in French. A press release is available in English: http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4290315-5123724

Madeleine Forster is a lawyer from DLA Piper on secondment with the HRLC.