Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
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The French Constitutional Council held that a provision that made it an offence to visit a website promoting terrorist ideology was an unjustifiable limitation to the right to freedom of expression. The case had been brought before the Council for review of the constitutionality of the provision after a man was sentenced to two years imprisonment for visiting websites calling for a jihad. The Court held that the provision was unnecessary as there was an existing legislative framework to address terrorism which did not infringe the right, and that the application of a two-year period of imprisonment for visiting a website was a disproportionate limitation of the right to freedom of expression.
In 2016 a thirty-two-year-old man, David Pagerie, was identified by local French law enforcement after a surveillance method referred to as the “S card” flagged his online behavior as suspicious. Police raided Pageri’s house and found a computer desktop with a sticker of the logo of the terrorist group, Islamic State (ISIS), evidence that he had visited websites advocating jihad (an Islamic holy war), and pro-ISIS imagery and videos of executions on his electronic devices. It emerged that Pagerie had been using the encrypted instant messaging service, Telegram, to follow a jihadist page which broadcast videos of executions and religious songs calling for the commission of violent acts.
Pagerie was charged under article 421-2-5-2 of the French Criminal Code which makes the “ordinary visit” of websites broadcasting terrorist messages, images or videos an offence unless such visits are for a legitimate purpose (such as for professional or scientific research or to gather evidence) and made in “good faith”.
In his criminal trial, Pagerie argued that he had browsed the sites sites out of curiosity. The Court rejected this defence, holding that he had not visited the websites “in good faith”, and sentenced Pagerie to two years imprisonment and a €30,000 fine.
After sentencing, Pagerie filed a request at the Cour de Cassation for the consideration of a Question Prioritaire de Constitutionalité (an expedited ex post facto review of a law) to determine the constitutionality of article 421-2-5-2. He argued that the criminalization of the consulting of public websites infringed the constitutional rights to the freedom of expression, freedom of thought and freedom to access the information, and that the provision’s definition of “terrorist” and its understanding of “ordinary visit” and of “legitimate purpose” were unjustifiably vague.
The Cour de Cassation accepted his Question Prioritaire de Constitutionnalité application and transmitted it to the Constitutional Council for review.
The main issue before the Constitutional Council was whether article 421-2-5-2 was a justifiable limitation to the right to freedom of expression. The Council was not required to assess the factual context of Pagerie’s case and so did not examine whether his conduct constituted an offence under the provision and so whether the conviction and sentence were correct.
The Council emphasized that the freedom of expression and freedom of communication protected in article 11 of the Declaration of the Rights of Man and of the Citizen (1789) must be extended to encompass contemporary technology such as the Internet. The Council also noted that any limitations to those rights – even if that limitation is enacted to protect another constitutional right – will be unconstitutional unless the limitation is necessary, appropriate and proportionate to the purpose it is meant to achieve. This three-pronged test to determine the justifiability of a limitation to a fundamental right is the traditional way the Constitutional Council reviews legislation and balances competing constitutional rights.
The Council examined the purpose of the impugned article and held that it formed part of the fight against terrorism. However, the Court found that there were numerous other legislative provisions (such as articles 421-2-1, 421-2-5 and 421-2-6 of the Criminal Code and article L 811-3 of the Internal Security Code), and that the conduct the impugned provision addressed – consulting websites broadcasting terrorist ideology – could be addressed by this broader legislative framework. The Court held that “French judges and investigators have enough powers to collect and control suspects’ correspondence and data pertaining to online activity … and many powers have been granted to the Administrative authority in order to prevent terrorist acts”. The Court also noted that these existing powers extended to the ability to “monitor a person who consults [communication services inciting terrorism], to arrest her and punish her when such consultation is motivated by a terrorist intent even if her plan has not reached an execution phase yet”.
In addition, the Council found that the punishment of two-years imprisonment for merely consulting a public website broadcasting terrorist ideology without any regards to the intention to commit terrorist acts or to support the terrorist ideology was disproportionate.
Having found that the impugned provision did not meet the necessity and proportionality tests, the Council did not engage in an analysis to determine its appropriateness.
The Court did comment on the vagueness of the “good faith” defence and noted that it was not possible for individuals to determine the meaning and scope of this good faith exception.
Accordingly, the Council held that article 421-2-5-2 was an unconstitutional limitation to the right to freedom of expression and of communication as it was neither necessary nor proportional and the Council abrogated the provision with immediate effect.
NOTE: Following the Constitutional Council’s decision, a new article 421-2-5-2 was adopted on February 20, 2017. This article introduced the requirement of an expression of support for the ideology broadcast by the website that has been visited. Again, a Question Prioritaire de Constitutionnalité was referred to the Constitutional Council to review this amended article, and on December 15, 2017, the Council held that this, too, was an unnecessary, inappropriate and disproportionate limitation of the right to freedom of expression and communication and was therefore also unconstitutional. The Council held that the expression of support for terrorist ideology does not constitute an intention to commit a terrorist act, and so still does not meet the standard for a criminal offence.
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The Constitutional Council emphasized that limitations to freedom of expression must always be justified on the grounds that the limitation is necessary, proportionate and appropriate – even when the limitation occurs in the context of national security legislation and the fight against terrorism.
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