Twitter, France, and Group Libel

On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ("agoodjew" and "agoodmuslim," respectively), some Twitter users were posting derogatory comments about Jews and Muslins, some allegedly meant to be 'jokes.'

The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users.

But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court.

The French Minister of Justice, Christiane Taubira, issued a press release, stating that posting racist or anti-Semitic messages on social media sites is punishable under French law, and that they are “in absolute contradiction with the fundamental values of our Republic and are not acceptable. The virtual channel does not make these acts less real and the perpetrators may be brought to justice.” Indeed, the UEJF issued a statement, indicating that it will ask the French courts to require that Twitter complies with French law and provide the identity of the authors of the tweets. What is the applicable French law? Defamation and Humor

Defamation of a particular group is a crime in France. Defamation is defined by article 29, § 1, of the French law on the freedom of the press (the "Loi sur la liberté de la presse," or "French Press Law") as a statement alleging or attributing a fact detrimental to the honor and consideration of either a person or a group. Its article 32, § 2, incriminates defamation based on a person’s belonging to a particular nation, ethnicity, race, or religion.

Therefore, under French law, the author of a message attributing or alleging any specific facts detrimental to the honor and reputation of the Jewish or the Muslim community is potentially liable for defamation. But what if the speech is labeled a joke?

The French courts have previously considered the intersection of defamation and humor. For example, France’s highest civil and criminal Court, the Cour de Cassation, confirmed in 2007 the judgment of the Court of Appeals of Paris, which had held that a French stand-up comic did not publicly defame Jewish people when imputing extremist ideas to them during a television broadcast. The Court of Appeals had described the comedian's words as “rambling, provocative, and with the goal of being humorous,” and held there was no defamation, noting that in context the speech “belonged to political arena and did not comprise, by evoking facts sufficiently precise, imputations prejudicial to the honor or reputation.”

The UEJF, which was one of the plaintiffs in the case, had argued that the defendant should not be shielded from criminal penalties if the statements were found to be defamatory merely because he was a professional comedian and the show was known for itsprovocative tone. However, the Court of Appeals' determination that the speech did not convey precise meaning avoided the question of whether a mere invocation of humorous intent was sufficient to avoid liability.

Fighting Words as Setting Limits to Free Speech

Jonathan Hayoun explained why the UEJF acted to have the tweets removed, stating that, while the organization is not adopting a mission to clean up the web, Twitter cannot place itself outside of the law, adding that “[m]ass dissemination of racist and anti-Semitic speech on the air and on mass media may be the premises of murders.” Indeed, if racist and anti-Semitic speech may be the "premises of murders," the only advisable solution is to remove them. French and U.S. law are similar on this point, as ‘fighting words’ set a limit for free speech in both legal systems. The difference between the French and the U.S. law, h