Freedom of speech: a new case of France’s fragile democracy?

, by Théo Boucart

Freedom of speech: a new case of France's fragile democracy?
Emmanuel Macron aux cérémonies du 11 novembre 2017 à la statue Clemenceau. Source: Remi Jouan / Wikimedia Commons / CC-BY-SA, GNU Free Documentation License

The French government’s repeated assaults on freedom of the speech over the past few months is a matter of great concern, even though the President and its Prime Minister have been trying to hide it behind other pressing concerns: radical Islamism and the coronavirus pandemic of coronavirus. An article from the feature “Democracy Under Pressure”, organised by the Young European Federalists and The New Federalist.

I don’t write often in English. I don’t consider myself fluent enough in this language to try to translate in an article ideas and thoughts, especially when the topic I have decided to cover can be a very hot issue, be it societal or political. Sometimes, though, I decide to switch from French in order to take some distance from the topic in question, or simply because I deem it necessary to inform non-French speakers about what is going on in my native country.

This is what exactly happened one year ago, when I wrote a piece about France’s “democratic problem”, a problem which hails from the very structure of the fifth Republic and the country’s hyper-centralization . This has led to the outbreak of many representativity problems in the French society, of which riots in the suburbs or the Gilets jaunes are the most blatant consequences. Nowadays, the French have to cope with another big issue: multiple crackdowns on freedom of the speech from the Government, especially through two laws: the “Avia law”, aimed at combating hate content on the internet, and the proposed “global security law”.

Global security law, “Avia law”… Is freedom of speech being rolled back?

Supporting national security is one of the most important objectives of the Macron’s presidency since his election in 2017. This objective, initially embraced by right-wing parties but increasingly handled by centrist and left-wing parties due to the recent terrorist attacks, could be an electoral move in the sunup to the 2022 presidential campaign. In any case, it seems to be conducted at the expense of fundamental rights. The recent debate between the leader of the National Front, Marine Le Pen, and Macron’s minister of Home Affairs, Gérald Darmanin, has also shown that some Government member blatantly embrace the radical right’s theses concerning Islamism and security issues, especially in the poor suburbs.

The legislative proposal to combat hate content on the internet, nicknamed “Avia law” (named after the MP who submitted it), is the first proposal which tries to establish a framework through which to guarantee said national security. It was originally tabled in 2020, although its first draft was studied by both the National Assembly and the Senate, and was submitted to the European Commission, as early as 2019. The proposal’s core idea is to protect the social network users from shocking content by deleting it within 24 hours of its publication. The draft “Avia law” would therefore impose several new obligations on a variety of ‘online platform providers’, such Facebook or Twitter, as well as browsers such as Google.

The final text was adopted in May 2020, but several opposition Senate members took the law to the Constitutional Council: several provisions, they argued, explicitly questioned freedom of the speech online. In its decision of June 2020, the Council struck down the law: several of its articles, especially those regarded freedom of speech and the press, were unconstitutional. The association “European Digital Rights” (EDRi) also issued a report, arguing that “the draft Avia law would seriously hinder the fundamental right to freedom of expression and opinion. It also risks fragmenting the Digital Single Market at a time where the Commission is looking to harmonise the rules that govern intermediary liability for user-generated content”. The law was finally promulgated by Emmanuel Macron in June 2020, albeit without its censored provisions.

Regulating the online platforms is only a part of Macron’s wider notion of security. Another draft law submitted by two pro-Macron deputies of the National Assembly is the so-called Global Security law, which enables increase of powers of the municipal police through access to pictures of body cameras worn by policemen, image recording from drones during demonstrations, and bans on recording policemen. As the text was mainly supported by police unions, it sparked considerable protests demonstrations among journalists and large parts of the population. It is feared that it will increase the surveillance and potential endangerment of journalists reporting on police actions, as well as on members of the public who choose to film the police, one of the most violent in Europe.

The proposal was examined by Parliament from October 2020, under an “accelerated procedure” explicitly demanded by the Government. The text was voted by on Christmas Eve, but again, the Constitutional Council was called to intervene, especially as regards Article 24 of the law, which blatantly hinders journalists and other whistleblowers from doing their job during demonstrations, and would amend the 1881 law on freedom of the speech. Even the European Commission expressed concerns over this specific article: “the Commission does not comment on draft laws, but it goes without saying that in a period of crisis it is more important than ever that journalists must be able to do their jobs freely and in complete safety. As is always the case, the commission reserves the right to examine the final legislation in order to verify that it conforms to EU law”. After the outcry, Emmanuel Macron and its Prime Minister Jean Castex promised to rewrite Article 24, but it was not enough to calm protests which are still ongoing.

Often presented as a solid European democracy, France should first address its own institutional and societal problems before pretending to be a functioning democracy, especially when the French government gives lessons to Central European countries (although the violations of fundamental rights in Poland and Hungary are more serious than in the so-called “country of the human rights”).

The pandemic and radical Islamism must not hide crackdowns on freedom of the speech

Many critics argue that such laws were submitted because of existential threats to the cohesion of the nation, such as the long-existing Islamism menace and the current coronavirus pandemic. France has indeed been shaken by many terrorist attacks these last few years: in 2012 in the South-West of France, in 2015 in Paris and its suburbs, and in 2016 in Nizza on the Mediterranean coast. Last year, a high school teacher was beheaded after allegedly showing caricatures representing Prophet Muhammad. The coronavirus pandemic has infected more than 4 million people in the country and killed more than 94.000.

If the link between the pandemic and the security concern is not direct, one might say that the government and Parliament benefit from a media focus on the sanitary crisis, in order to try to put forward the global security law through the accelerated procedure. It is unsurprising that this way of making law has sparked considerable demonstrations.

As for the Islamist threat, the link with security is more blatant: the government wants to attempt to censor terrorist content on the internet, and reinforce police’s power in areas which can be a breeding ground for Islamism - although the later is not directly targeted by the proposal. If the control of very shocking content can be understandable, one might be afraid that this procedure might be used in an arbitrary way, and might be used content which should not be canceled.

Nonetheless, it seems that, in the fight against Islamism, the French government led by Macron and Castex has decided to reduce civil liberties in the name of security. Education and economic development in poorer areas around the big cities are the “grands oubliés” in the whole strategy. As the presidential election looms, short-term solutions and electioneering plots are very harmful for the country.

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