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France21 January 2004

The Senate repeals the offence of insulting a foreign head of state

Senators repealed Article 36 of the 29 July 1881 law relating to the offence of insulting a foreign head of state, at the second reading of the Perben draft law. The repeal decision brings French legislation into line with the jurisprudence of the European Court of Human Rights (ECHR) that condemned France on 25 June 2002. The ECHR found that the offence of insulting a foreign head of state did not allow journalists to produce proof of their allegations and was a disproportionate measure to protect a person’s reputation or rights, even in the case of a head of state or government. The court considered this law was a means of giving heads of state an exceptional status that no longer conformed to current political practice and concepts. The existence of this offence therefore damaged freedom of expression without responding to "a pressing social need" and as a result violated Article 10 of the European Convention on Human Rights.

18 June 2003

Call for repeal of press laws contravening European Human Rights Act

Reporters Without Borders called on the French government today to repeal sections of the country’s press laws that contravene the European Human Rights Convention, accusing it of ignoring rulings that they should be abolished.

"Three times in recent years, the European Court of Human Rights has firmly stated that parts of French laws violate the article 10 of the Convention," said Reporters Without Borders secretary-general Robert Ménard in a letter to French justice minister Dominique Perben.

"These are article 2 of the 2 July 1931 law (publicising civil parties involved in a court case), article 14 of the 29 July 1881 law (foreign publications) and article 36 of the same law (disrespect to foreign heads of state). None of them have been amended or abolished, yet they are clear obstacles to freedom of expression."

He noted that the European Court emphasised the importance of press freedom for the health of any democratic society. The French media constantly had to justify itself, he said. In libel cases, for example, malice was presumed on the part of the journalist, who had to prove the contrary, illustrating a mistrust of the media.

The thinking behind the European Court’s rulings is slowly filtering into the decisions of French judges in press cases and article 10 is now referred to in nearly all cases that come before French courts. But some judges pay little attention to it, considering that curbs on free expression involved in the prosecution of journalists are necessary in a democratic society and justify the end.

Reporters Without Borders thinks it necessary to change the laws and go beyond just referring to the Court’s rulings, which do not provide any real legal security since French courts have no obligation to obey the Court. The French supreme court has shown that the European Court’s condemnation of French legal practices was no block to them being upheld (in a case involving the satirical weekly Le Canard Enchaîné).

The European Court ruled on 3 October 2000, concerning an article in the French weekly l’Evénement du Jeudi about legal battles between current and former heads of the firm Sonacotra, that no special treatment was due the content of the legal documents relating to civil parties in the case. The French supreme court even brushed aside jurisprudence to back the European Court by saying that article 2 of the 1931 law, with its general and complete ban, restricted freedom of expression in a way that was unnecessary for protecting the legitimate interests listed in article 10-2 of the European Convention.

The European Court also condemned article 14 of the 1881 press law that allowed the interior minister to ban the sale and distribution of foreign-language publications or those in French produced abroad. It said in a 17 July 2001 ruling that, in the case of foreign publications, it contravened common law and was an unnecessary restriction in a democratic society.

Less than a year after the ruling, on 25 June 2002, the Court again condemned France for its use of article 36 of the 1881 law on disrespect towards a foreign head of state. A 1995 article in the French daily Le Monde said aides of Moroccan King Hassan II were involved in drug production and smuggling. The king sued and after initially losing the case, won on appeal to the supreme court. The European Court condemned the decision, noting that the offence of disrespect towards a foreign head of state prevented journalists proving their allegations, and said the law was excessive protection of personal reputation or rights, even in the case of a head of state or government.

The Court said the law gave heads of state an undue status in common law that was out of line with modern political ideas and practices. Yet a few days after the ruling, on 3 July, the Paris appeals court ignored it and said the offence could stand, though it freed the defendants. The appeals court decision creates legal doubt, making it vital that article 36 be abolished, Reporters Without Borders said.

The European Court says laws must be considered as including both content and interpretation. They must also be predictable, accessible and comprehensible. Anyone exercising their right to express themselves, which the Universal Declaration of Human Rights says is one of the highest human aspirations, needs to know the limits beyond which such a right is considered excessive.

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