ENDitorial: French law on delinquency: the threat to FoE is elsewhere

By EDRi · March 14, 2007

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

The new French law for the prevention of delinquency is yet another vehicle
to worsen penalties and to increase the prerogatives of the police, when
infractions are committed through or using the Internet. The main purpose of
this law is to reduce the limitation of penal responsibility for 16 to 18
years old minors and to increase the powers of mayors, including by
providing them with normally private information on families and minors in
difficult social situation. As it has become usual in France, the
parliamentary discussion has been the occasion to include various provisions
having little to do with the core of the law.

The law imposes new obligations to French ISPs, reducing their limitation of
liability resulting from the transposition of the E-commerce directive. In
addition to contribute to the fight against hate speech, holocaust denial
and child porn, ISPs should now inform public authorities on any incitement
to violence and violation of human dignity, allegedly committed by their
subscribers and having been reported to them by Internet users (article 40
of the law). On gambling activities, French ISPs should now inform their
subscribers of foreign gambling websites considered illegal under the French
law and of the penalty in case of illegal gambling practices (same article
40). When this information lacks, French ISPs may be charged to one year
imprisonment and 75000 euros fine penalty. Furthermore, advertising on any
media unauthorised gambling activity is also punished with 30000 euros fine
(article 38). French ISPs may also be concerned by provisions (article 35)
imposing to editors, or by default to persons in charge of disseminating
materials considered as harmful to minors, to clearly mention that these
materials are forbidden to minors.

The law also creates new infractions and grants extended prerogatives to law
enforcement authorities. The use of electronic communication in making
‘sexual proposals’ to minors younger than 15 is now a crime (article 35),
punished by two years imprisonment and 30000 euros fine (5 years and 75000
euros when the proposal leads to an encounter). A new provision introduced
by the same article 35 grants dedicated law enforcement authorities with new
powers, since they now can use pseudonyms when they participate in
electronic exchanges for the purpose of investigations, and they also can
detain and provide illegal content for the same purpose. However, they
cannot use these possibilities for crime incitement. Finally, extension of
law enforcement authorities prerogatives is provided by article 39, which
extends to the public prosecutor (who is hierarchically subordinated to the
Justice Minister) the possibility to initiate an emergency legal procedure
in order to take down a website considered as illegal.

While these provisions are actually likely to seriously endanger freedom of
expression and the respect for the rule of law on the Internet, they haven’t
called for the same attention as the provision criminalising the video
recording and dissemination of violent acts – from ‘happy slapping’ to rape
(article 44). Unless recording is made by a professional journalist or in
order to be used as an evidence in court cases, the person knowingly
recording such acts is now considered as an accomplice and punished as such,
depending on the act. The dissemination of such recorded images is punished
by five years imprisonment and 75000 euros fine.

Some French organisations (Wikimedia France, Reporters without Borders, and
the Odebi league) claimed that this provision would threaten ‘citizen
journalism’, especially when citizens record police violence, e.g. during
street demonstrations. The Odebi league is even trying to demonstrate this
thesis in its press release by pointing out that, among the concerned
violent acts, those perpetrated by ‘agents of the State’ are included. This
is obviously an outbid manoeuvre, since little knowledge of the law suffices
to understand that this mention is only meant as an aggravating circumstance
for some violent acts – recorded or not -, when they are perpetrated by
civil servants! In fact, this provision, although somehow badly formulated,
has been introduced after some serious crimes (rape, violent aggression)
have been recorded and disseminated with no serious actual possibility of
incrimination. And regarding police violence issue, actually, if a video
shows the police carrying violence, this could be used as evidence…
against the police!

It remains that the penalty is disproportionate with regards to the fact
that recording and dissemination of violent acts are often made by minors,
sometimes very young, and this disproportion is exactly the reason why the
whole law, and not only this provision, should be blamed and have been
fought by human rights organisations.

It also remains to discuss this notion of ‘citizen journalism’ and
especially what are the legal, sociological and political implications of
assimilating free expression (which should be granted to any citizen) to
journalism (which is a professional activity encompassing some duties,
notwithstanding the freedom of the press). And this is another story…

French law for the prevention of delinquency (in French only, 05.03.2007)

Wikimedia France press release – Draft law for prevention of delinquency (in
French only, 02.2007)

New prevention of criminality law poses threat to citizen reporting

Odebi league press release – Reaction to Nicolas Sarkozy’s spokesperson’s
explanations : Forced to react to the articles published by the
international press, the candidate and minister can’t assume the
consequences of his own actions and policy (12.03.2007)

French to limit violent net clips (07.03.2007)

(Contribution by Meryem Marzouki, EDRI member IRIS – France)