France12 February 2004
Perben law finally adopted : Journalists’ right to protect sources remains under threat
France’s National Assembly finally adopted the Perben Law on 11 February 2004. But more than 120 deputies and senators lodged an appeal the same day before the constitutional council.
The law, usually known as "Perben II", is good for press freedom in that it brings French legislation into line with the jurisprudence of the European Court of Human Rights (ECHR) by repealing the offence of "insulting a foreign head of state" and also Article 2 of the 2 July 1931 law.
Concern remains however about the use that could be made by officials of the judicial police, state prosecutors and examining magistrates of additional powers of requisitioning. Articles 80 and 116 of the measure adopted sets out that when requisitions relate to people referred to in Article 56-2 of the criminal procedural code (CPP), that is media businesses "documents can only be handed over with their agreement". If they do not respond to these requisitions they will not liable to the 3,750 euros fine laid down in the absence of a response to the demand for requisition "as soon as possible".
But only media businesses are referred to in Article 56-2, not journalists individually, who are seen just as "persons" and thus, under the text, obliged to respond to requisitions.
Reporters Without Borders argued for an extension of the procedure under Article 56-2 of the CPP - that is the requirement for the presence of a magistrate in the case of a search of company premises - to a journalist’s home. But neither the senators nor the deputies adopted the amendment proposed by the press freedom organisation.
This text therefore constitutes a serious threat to the capacity of independent and investigative journalists to protect their sources if they keep any amount of information at their homes. From the moment they are considered "likely to have any documents relevant to the investigation" they will obliged to hand them over to an officer from the judicial police or prosecutor who asks for them in the context of a preliminary investigation or to the examining magistrate. A refusal would result in imposition of a fine of 3,750 euros.
Perben draft law: The National Assembly strikes out amendments introduced by the Senate
Deputies re-established a three-month deadline for prosecuting journalists for defamation, except in cases involving racism and discrimination for which the deadline was extended to one year.
Parliament urged to strike out restrictive amendment to press law
Reporters Without Borders called today on party leaders in the lower house of the French parliament (the Chamber of Deputies) to strike out an amendment to the country’s press law, calling it "a frontal attack on the rights of journalists and a threat to investigative reporting."
The amendment would extend to a year the deadline for prosecuting journalists for defamation, insults or undermining the presumption of innocence. It is part of the proposed "Perben Law," which aims to "adapt the legal system to the changed crime situation."
"The three-month rule is very important for the media and for freedom of expression," said Reporters Without Borders secretary-general Robert Ménard. "It is security for journalists who have to prove they have done a serious investigation and have material evidence and witnesses to back up their claims. Who is going to keep for a whole year all their reporting notes or remember clearly for that long all the details of their enquiries? The present rule is an important defence guarantee for journalists and their employers."
Article 16 of the Perben Law would amend article 65 of the 1881 press law so that the automatic three-month extension (during which prosecution must begin) of the initial three-month deadline (during which suits must be filed) would be extended to a year. The upper house (the Senate) approved the Perben law on 8 October and the Chamber will consider it on second reading on 26 November.
Reporters Without Borders also called on deputies to adopt an amendment, rejected by the Senate, which extends to a journalist’s home the rule that a judge must be present during any search of media offices (article 56-2 of the code of criminal procedure). The proposed amendment aims to strengthen protection of a journalist’s right not to reveal sources, which has often been violated recent years.