The dissemination of remarks made in public with regard to certain sections of the population, in particular Muslims, is recurrent. The reference to the "great replacement" or the now perennial confusion between Muslims and foreigners, if they can be qualified as fake news with regard to their obvious inaccuracy, also invite us to re-examine the limits of freedom of expression.
Two offenses were initially provided for in the law of July 29, 1881 on the freedom of the press : public insult and defamation. The law of July 1, 1972, known as the Pléven law, adds a third offense punishable by one year's imprisonment and/or 45000e to fine those who, by statements made in public, "have provoked discrimination, hatred or violence against a person or a group of people on account of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion”. This article deals with this crime.
At a time when statements specifically targeting Muslims multiply, it is advisable to be interested in the cursor fixed by the judicial jurisdiction to determine what concerns or not of this offense. About twenty recently considered decisions makes it possible to identify two elements which are particularly the object of the attention of the judges: the objective determination of a group of people, and the interpretation which it is advisable to have of the “provocation”.
Criticism of religion or remarks made with regard to practitioners?
To fall within the scope of the offence, the comments made in public must target “a group of people because of their religion”. Clearly and consistently, the judicial judge excludes from the scope of the offense comments made with regard to religion or its prescriptions. Thus, even vehement criticisms of religion are to be distinguished from remarks made with regard to the (presumed) practitioners themselves. For example, a political leaflet denouncing the action of financing a Muslim cult or the criticism of a religious practice such as the slaughter of animals do not fall within the scope of the offense since they do not directly target a group of people.
Other statements are more difficult to assess: for example, a pamphlet in which the author imagines the disappearance of Islam and the fate reserved for its followers. These remarks then require a much more in-depth control on the part of the judge, only the remarks aimed at the followers making it possible to qualify a “group of people because of their religion”.
What are the reprehensible words?
The judicial jurisdiction has successively gone from a broad interpretation of "provocation", thus making it possible to sanction statements giving rise to a feeling of hostility, rejection or hatred, to a strict interpretation, then making it possible to sanction only statements which urge, invite, even implicitly, to hatred, discrimination or violence. This distinction nevertheless involves an undeniable difficulty: the positioning of the cursor between statements creating rejection, a feeling of hostility towards a group of people, and statements provoking hatred or inviting a reaction, an discriminatory or violent is particularly difficult to detect. Indeed, the use now trivialized of the expression “great replacement” – which should nevertheless be questioned – cannot be understood as an expression that only creates a feeling of hostility or rejection. Killings have already taken place based on these theories, whether it is the killing of Christchurch in Australia or, more recently, Buffalo in New York State in the United States.
If, legally, the strict interpretation of provocation is more in line with the principle of strict interpretation of criminal law, it is not necessarily adapted to the reality of society. The effects of such remarks on social cohesion are indeed undeniable and the cursor thus fixed gives free rein to theories and remarks which can prove to be dangerous.
This also raises the question of the distribution channel which should be taken into account more since it has an impact on the audience of the comments. In any case, the mere penalization of statements containing a “provocation”, that is to say an incitement to act, is insufficient to counter dangerous ideologies and create problems in terms of social cohesion. The exponential increase in invectives of this type and the media reality therefore put this current state of the law to the test.
Jurisprudence tested by the increase in invective
From now on, the notion of “great replacement” is used in French public debate during prime time, without causing any particular emotion. This expression, but also the allegations that accompany it, are often held under the pretext of debates on immigration and thus create confusion between Muslims and foreigners. This phenomenon, which is now part of the media and political scene, is studied by other disciplines and leads to a re-examination of the state of the current law.
Indeed, the penal system is not fixed and the offenses provided for by law evolve at the same time as society. In the field of criminal law, it would therefore be possible, for example, to condemn public remarks arousing a feeling of hostility or rejection. Such a tightening of criminal law in the area of freedom of expression would, moreover, be in accordance with the case law of the European Court of Human Rights. The latter had already declared this position to be in conformity with Article 10 of the European Convention on Human Rights in 2004. Still recently, the ECHR considered that comments equating people of the Muslim faith with delinquency and insecurity tend to arouse a strong feeling of rejection and hostility towards this group. It would therefore be a question of adapting the legislation to changes in the content of statements made in public.
The need for effective complementary measures
No penal system is effective without a real investment in education, a preventive tool of primary importance. Effective additional measures, particularly in the field of education and awareness, are therefore essential. The European Court of Human Rights recalls, moreover, in its case-law and from 1976, that freedom of expression is necessary to guarantee pluralism, tolerance and the spirit of openness without which there is no democratic society.
The extent of hate speech has also led the Office of the United Nations High Commissioner for Human Rights to create the first international day against hate speech in June. Moreover, and as the researcher Charlotte Denizeau reminds us, the Council of Europe and the European Union were built “in reaction against fascist crimes, which, before being perpetrated, were inscribed in ideological discourses”. The European continent, through its history, must therefore prevent the spread of ideologies that incite hatred, and then violence, against specific groups of people.
At the national level, it would therefore be pragmatic to act at two levels: continue to develop legislation relating to the fight against online hate and invest more widely in raising awareness of these issues, distancing comments made at large antennas and on social networks, a minimum threshold of knowledge being essential to guarantee the peaceful and common exercise of fundamental freedoms.