By: Alexandrah Bakker, Junior Research Associate, PILPG-NL
On October 20, 2020, MPs from France’s ruling party proposed the so-called “Global Security Law” (Loi Sécurité globale): a law purporting to be “inventive and innovative” in its approach towards national security, while respecting the actors who contribute to it. Although the entire bill has elicited criticism, its Article 24, in particular, has gained notoriety.
Article 24 criminalizes the dissemination of images showing the face or other identifying characteristics of a member of the national police or of the gendarmerie participating in a police operation. The provision applies when the dissemination aims to undermine the officer’s physical or mental integrity. Individuals convicted under this provision may face imprisonment of up to one year and a fine of up to €45,000.
Proponents of Article 24 claim that police officers have increasingly faced personal attacks on social media, and that this provision is solely intended to protect them from those who have malicious intent. Meanwhile, critics have denounced the law as an instrument of impunity. Many have pointed to recent high-profile incidents of police violence that would not have been brought to the public’s attention were it not for the widespread distribution of videos of the incidents on social media. A few notable cases include the Benalla Affair, the death of Cédric Chouviat, the Theo rape case, and, more recently, the beating of Michel Zecler, which was condemned by French President Emmanuel Macron. In other words, they consider that Article 24, by limiting the right to distribute information, can have further implications for the accountability of public authorities in France.
Domestic and international institutions, such as the Defender of Rights (Défenseure des droits), the League for Human Rights (Ligue des droits de l’homme), Reporters Without Borders, Amnesty International, and United Nations experts, have decried the law’s potential implications for the right to privacy, freedom of peaceful assembly, and freedom of expression. In particular, these institutions have criticized Article 24 as a threat to the right to information. In response to this criticism and large-scale protests, legislators modified the law to add that it is without prejudice to the right to information.
The Right to Information in International Human Rights Law
The right to information is a corollary of the right to freedom of expression, which is enshrined in both domestic and international human rights law. France’s international obligations with regards to this right can be found in two places: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention of Human Rights (ECHR).
Article 19 of the ICCPR and Article 10 of the ECHR provide for a right to freedom of expression which includes the freedom to seek, receive, and impart information. However, this right is not absolute. Both provisions allow the state to limit the right to information if such a limitation is pursued for a legitimate aim, is provided for by law, and is necessary and proportionate.
Article 24 and the Right to Information
Both the ICCPR and the ECHR recognize the protection of national security and the rights or reputation of others as grounds to limit the right to information. However, the restrictions imposed citing these grounds must be legal, necessary, and proportionate. It is in this respect that human rights experts have expressed concern over Article 24.
Although Article 24 finds basis in legislation, experts consider that the legality requirement is not satisfied due to a lack of precision. A law that limits the right to information must be sufficiently clear that the public can regulate its behavior accordingly, and that those charged with its execution can distinguish between forms of expression that are and are not permitted. It is hard to say, for instance, how the intent underlying the dissemination of images will be ascertained.
The necessity and proportionality elements require that the law must be applied only for the purpose for which it was adopted, must be directly related to the need used to justify it, and must be the least intrusive means of achieving its goal. Reporters Without Borders observed that, even if the law is applied appropriately by judges, Article 24 may still be treated by law enforcement as a justification to arrest individuals live streaming from protests or other events with significant police presence. Furthermore, law enforcement officers’ right to privacy is already recognized within Article 8 of the ECHR and Article 9 of the French Civil Code. It could be argued that steps could be taken to reinforce the civil remedies available under these provisions, rather than adding elevated criminal sanctions.
Conclusion
On November 24, 2020, the National Assembly voted to adopt the Global Security Law with 388 votes in favor and 104 against. The government has since announced that the article will be completely rewritten to address the criticism, a move which has itself been criticized as an inappropriate intervention by the executive in the legislative process. However, experts claim that it is the underlying idea, and not the phrasing, of Article 24 that is incompatible with international human rights standards. They have therefore called for the article to be withdrawn entirely. The law is expected to reach the Senate in January 2021.