France: ARTICLE 19 supports claim challenging lawfulness of administrative website blocking

ARTICLE 19 has submitted an amicus curiae brief to the French Conseil d’Etat in support of a claim brought by French associations La Quadrature du Net, French Data Network, and Fédération des Fournisseurs d’accès à Internet associatifs.[1] The claimants submit that decree no. 2015-125, which allows the administrative blocking of websites without a court order, should be quashed. In our submission, we argue that the decree violates international standards on freedom of expression.

On 5 February 2015, the French government adopted decree no. 2015-125,which permits the administrative blocking of websites that condone terrorism or distribute child pornography. Under the new decree, a special division of the police forces, tasked with combating information technology crimes, can order ISPs to block access to a list of websites without prior judicial authorisation. The division has the power to decide that a website contravenes French criminal laws on terrorism and child pornography, to request that the editors of the website in question remove the allegedly unlawful content, and, where the editors are not identified on the website or refuse to comply with the removal request, to order ISPs to prevent access to the website in question. A magistrate from the privacy public watchdog CNIL is informed of this decision and may recommend its modification or initiate legal proceedings before an administrative tribunal. If internet users access a blocked website, they are redirected to a Ministry of Interior webpage explaining why access has been blocked.

• Read full amicus here (in French)

The new legal framework imposes severe restrictions on online freedom of expression that are akin to banning a newspaper or broadcaster.[2] Worryingly, these come in the absence of any prior decision by an impartial and independent body.

The right to freedom of expression is not absolute; however it may only be restricted under very narrow and limited circumstances. International law (specifically, Article 19(3) ICCPR and Article 10 ECHR) provides that:

• restrictions must be set out by law: this means that a norm must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and foresee the consequences of their behaviour;
• restrictions must pursue a listed ‘legitimate aim’;
• restrictions must be ‘necessary’ and proportionate to the protected aim. This means that the restrictions must not be excessive. Any restrictions must be appropriate under the particular circumstances, the least intrusive option available and proportionate to achieving the protected interest or legitimate aim.

While the protection of national security (the fight against terrorism) and the fight against child pornography are clearly ‘legitimate aims’, ARTICLE 19 considers that the French legal framework created by decree n. 2015-125 and the laws it implements fail to meet the other requirements of international law on freedom of expression.

In our amicus curiae brief, we argue:

• The French criminal law on the prohibition of speech condoning acts of terrorism is vaguely worded. As such, it lends itself to subjective and arbitrary interpretation.[3] Following the January 2015 attacks on Charlie Hebdo and a Jewish supermarket in Paris, the law has been used in a worrying number of lawsuits. There have been reports of teenagers and even children being charged for condoning or inciting to terrorism. On March 18, press reports indicated that there were 132 convictions for condoning or inciting to terrorism following the attacks.[4] In Nantes, a 14-year old girl was charged for condoning terrorism after an argument with public transport personnel.[5] In another case, an 8-year old child was questioned by the police after he allegedly refused to partake in a one-minute silent commemoration of Charlie Hebdo.[6]

ARTICLE 19 reiterates that international standards are clear that terrorism offences should not encompass expression where there is no actual intent to encourage or incite terrorist acts. We argue that the vagueness of the law reverberates on the decree that implements it.

• The decree itself does no specify the technical measures that should be used to block access. Instead, it imposes a vague, indeterminate duty on ISPs to ‘take all appropriate measures’. As such, the decree is too vague and does not meet the requirements of international law.

• Blocking is not effective at tackling the problems it purports to address. It is easily bypassed even by people who do not have strong technical skills and presents inherent risks of under-or over-blocking content. In addition, it also fails to address the actual issue of child abuse. In sum, blocking cannot be justified as necessary or proportionate.

• ARTICLE 19 argues that a restriction as severe as website blocking should only be ordered by a court or similar independent and impartial body, consistent with the guarantees of a fair trial under international law.