This week the European Court of Human Rights published its decisions in, among others, three cases related to freedom of expression in France: Le Pen v. France, Fleury v. France and Brunet Lecomte and Lyon Mag v. France. All three deal with civil or criminal penalties imposed on individuals for published statements regarding other individuals or groups. The Court found no violation in the first two cases.
In Le Pen v. France, the Court declared inadmissible the application presented by the president of the political party National Front, who was convicted and fined for inciting ethnic or religious discrimination, hated and violence based on comments he made in an interview with French newspaper Le Monde, wherein he stated that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge” and the French “have to watch our step.” In light of the applicant’s elected political position and the delicate context of the immigration debate, the Court held that France had relatively wide discretion to determine the necessity of State interference with the right to freedom of expression. As summarized in the press release, the Court found:
[…] Mr Le Pen’s comments had certainly presented the “Muslim community” as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people.
Accordingly, the Court determined that the applicant’s conviction did not violate the European Convention on Human Rights.
In Fleury v. France, the Court held that the conviction of the applicant, a town councilor, on defamation charges for circulating leaflets which implied that the town mayor was engaged in embezzlement and other illegal acts in his management of the town’s affairs did not violate Article 10 of the European Convention on Human Rights. As in Le Pen, the Court employed a higher level of scrutiny because the speaker was a public official and, noting that the allegations lacked factual support, held that the fine imposed was not disproportionate.
In Brunet Lecomte and Lyon Mag v. France, the Court held that the conviction of the head of magazine Lyon Mag and the civil fine imposed on the magazine, in connection with defamation allegations raised by an individual who was prominently featured in the magazine’s cover story on terrorist groups in Lyon and identified as “one of the most influential Muslim leaders in Lyons”, violated Article 10 of the Convention. The Court’s reasoning was summarized in its press release as follows:
The offending articles had contributed to a debate in the general interest at the time – they were published shortly after the 11 September 2001 attacks on the World Trade Center – and the Court thus took the view that the authorities had only limited discretion to restrict the applicants’ freedom of expression.
The Court further noted that whilst the domestic courts had analysed the terminology and insinuations in the articles, it was also appropriate to consider their context, namely the publication of a series of articles resulting from a three-week investigation into the Islamist networks of the Lyons area.
Furthermore, the articles did not systematically make direct reference to T. and had shown prudence by, for example, distinguishing between Islam and Islamism. Whilst T. had been given a prominent place in the magazine, in both text and pictures, he had not been targeted by any personal animosity and the acceptable degree of exaggeration in matters of journalistic freedom had not been exceeded, especially as T, being an active lecturer, could expect a close examination of his statements. Lastly, the offending remarks were not devoid of factual basis because numerous documents showing the danger posed by T.’s statements had been submitted to the Court.
Therefore, the applicants’ interest in imparting and the public’s in receiving information about a subject in the general interest and its repercussions for the Lyons area as a whole, prevailed over T.’s right to the protection of his reputation. The Court further found that the award of EUR 2,500 in damages was disproportionate. The Court held, by five votes to two, that there had been a violation of Article 10.
For more on the topic of freedom of expression, visit the websites of the U.N. Special Rapporteur on Freedom of Opinion and Expression, the Special Rapporteur for Freedom of Expression of the IACHR, the Special Rapporteur on Freedom of Expression in Africa and NGOs Article 19, the ACLU and the Committee to Protect Journalists.