RT the Hate: France and Twitter Censorship, Part Two

Last October I wrote about the rise in popularity among French Twitter users of the hashtag #unbonjuif ("a good jew"). In December we saw a growth in other offensive hashtags, including the homophobic #Simonfilsestgay, ("if my son is gay") or the xenophobic #SimaFilleRamèneUnNoir ("if my daughter brings a Black man home"). As with #unbonjuif, the "game" consisted of adding messages to these hashhags to create a "joke."

This time the hashtags prompted a response from the government. Najat Belkacem-Vallaud, France’s Minister of Women's Rights, reacted to these offensive tweets by writing an editorial published on December 28 in Le Monde under the title "Twitter must respect the values of the Republic." She described these tweets as being "morally reprehensible and illegal under our laws," and goes on by writing that:

[i]t is the honor of France to have progressively included in its criminal code punishment for incitement to hatred or violence against a person or group of persons because of their origin, membership or non-membership in an ethnic group, nation, or because of their sexual orientation or gender identity. These acts or remarks are punishable by law and the fact that they were made using a virtual channel does not make less punishable those who committed them and whose case made be tried by courts.

Belkacem-Vallaud's comments garnered international attention and prompted prominent responses, both in support and against her remarks. While such a regime of state-controlled censorship is unthinkable here in the United States, it serves as an additional data point in the control of hate speech in France. What follows is an analysis of the applicable French law.

Applicable French Law

Since 1972, article 24 of the July 29, 1881 French Freedom of the Press Law ("French Press Law") has incriminated provocation "to hatred or violence against a person or group of persons because of their gender, sexual orientation, gender identity or disability."

France has also ratified the Council of Europe Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems, which article 5 obliges parties at the convention to adopt laws incriminating insulting individuals through a computer system because of their race, color of skin, ethnic origin or national or religious background.

Article 48-1 of the French Press Lawallows non-profit organizations to sue the authors of xenophobic or anti-Semitic tweets, if they have been lawfully registered for at least five years from the date of the incident, and if their by-laws state that one of their goals is to fight racism, and to assist victims of discrimination because of their national, ethnic, racial or religious origins. Najat Belkacem-Vallaud announced in her editorial that, starting today, she would work with Twitter and such non-profit organizations to try to find a way to prevent such tweets.A meeting was originally scheduled to take place this week, but it has been indefinitely postponed, as Twitter's participation could not be confirmed.

Censorship or Pressing Social Need?

Not all French law points to censorship of offensive speech, however. In addition to the French Press Law and the Additional Protocol to the Convention on Cybercrime, France has also ratified the European Convention of Human Rights(ECHR). Its article 10 protects freedom of speech, but its section 2 states that such right "may be subject to … formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in ademocratic society … for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others."

According to the European Court of Human Rights, article 10 § 2 is not only applicable to "information" or "ideas" that are generally received or regarded as inoffensive or as a matter of indifference, but also to those that "o