Case Law, Strasbourg: Zemmour v France, Journalist’s conviction for inciting discrimination did not breach Article 10 – Catherine Arnold

In Zemmour v France [2022] ECHR 1130 (in French only), the Fifth Section of the European Court of Human Rights held, unanimously, that the Article 10 right of the applicant, a journalist and political commentator, had not been violated by his conviction for inciting discrimination and religious hatred against the Muslim community in France under s.24 § 7 of the Freedom of the Press Act of 29 July 1881.

Background

The applicant, Mr Éric Zemmour, is a French journalist and commentator, who has published several books. In 2021, he ran for the French presidency.

On 16 September 2016, the applicant was interviewed on a television talk show, which aired live on the channel France 5 at 7pm. He was promoting his new book, Un quinquennat pour rien (‘A wasted presidency’), which included an introduction titled ‘La France au défi de l’Islam’ (‘France and the challenge of Islam’) [5].

During the interview, the applicant made five statements [6]—

1. He answered ‘No’ when asked whether ‘there are Muslims in France who live in peace, who don’t take the Koran literally and are fully integrated’;
2. He stated ‘those who wage jihad are seen by all Muslims, whether they say so or not, as good Muslims—they’re warriors, soldiers of Islam’;
3. He responded to the interviewer’s statement that ‘terrorism is apocalyptic’ by saying ‘No, it’s not terrorism, it’s jihadism. So it’s Islam’, then stated that jihadism and Islam are ‘the same to me’;
4. He told the interviewer, ‘For 30 years we’ve been experiencing an invasion, a colonisation, which is bringing about a conflagration’ and ‘in countless neighbourhoods, on the outskirts of French cities, where many young women are veiled—that’s also Islam, that’s also jihad, that’s also the fight to Islamise a territory which is not, which is in the ordinary course a non-Islamised land, a land of infidels. It’s the same thing, it’s territorial occupation’;
5. He said, ‘I think they [i.e. Muslims living in France] need to be given a choice between Islam and France’ and ‘So, if they’re French, they have to—and this is hard because Islam doesn’t lend itself to this—they have to let go of what their religion is’.

Following the applicant’s interview, the Coalition for Just Peace in the Near East issued proceedings against him in the Paris Criminal Court for making the statements set out above. The Coalition alleged that these statements incited discrimination, hatred or violence against a person or group on the grounds of origin or membership or non-membership in a particular ethnicity, nation, race or religion, contrary to s. 24 § 7 of the Freedom of the Press Act of 29 July 1881 (‘the 1881 Act’) [5].

On 22 June 2017, the Paris Criminal Court held that the applicant’s five statements fell within the definition of the offence created by s. 24 § 7 of the 1881 Act. The applicant was convicted inciting discrimination and religious hatred against the Muslim community of France, contrary to s. 24 § 7 and sentenced to pay a fine of €5,000 [7].

On appeal, the Paris Court of Appeal partially reversed the Criminal Court’s decision. In its judgment of 3 May 2018, the Court of Appeal found that only the applicant’s final two statements (numbered 4 and 5 above) could be considered as ‘inciting discrimination and religious hatred’. The Court reduced the applicant’s fine to €3,000 [8].

The applicant challenged the Court of Appeal’s judgment in the Cour de Cassation. He alleged that his right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights (‘the Convention’) had been violated because his statements had been about a matter of public interest which lay within the scope of his Article 10 right. On 17 September 2019, the Cour de Cassation dismissed the applicant’s challenge [9]-[10].

The applicant lodged an application with the European Court of Human Rights on 5 December 2019. He alleged that his conviction and sentence under the 1881 Act violated his right to freedom of expression.

Judgment

Article 17

The Court first considered whether the applicant’s application should be rejected by reference to the abuse clause enshrined in Article 17 of the Convention [22]. In deciding this question, the Court had regard to the Grand Chamber’s judgment in Perinçek v Switzerland [2015] ECHR 907 [26]-[27], which stated that Article 17 only applies ‘on an exceptional basis and in extreme cases’ and, further, that the decisive point under Article 17 is whether ‘the applicant’s statements sought to stir up hatred or violence, and whether by making them he attempted to rely on the Convention to engage in an activity or perform acts aimed at the destruction of the rights and freedoms laid down in it’.

Having regard to the facts of the applicant’s case, the Court considered that the threshold set out in Perinçek was not met. There was no obvious indication that the applicant aimed to destroy the rights and freedoms set out in the Convention by making the statements in question [28]. Therefore, the Court found that the Applicant’s application did not constitute an abuse of the rights in the Convention with reference to Article 17 and that it was not incompatible with Article 35 § 3 of the Convention [28]-[29]. The applicant’s application was admissible.

Article 10

The Court considered that the national courts’ sentencing of the applicant did constitute an interference in his right to freedom of expression under Article 10 § 1 [40]. The question for the Court was, therefore, whether the national courts’ decisions were justified under Article 10 § 2, in that they were ‘prescribed by law’, intended for one or more of the ‘legitimate aims’ set out in Article 10 § 2, and ‘necessary in a democratic society’ to achieve that aim or aims.

Prescribed by law

In determining whether the national courts’ decisions were ‘prescribed by law’, the Court had regard to the principles summarised in Perinçek [41]. The Court noted the fact that the text of s.24 § 7 of the 1881 Act distinguishes between statements which directly encourage people to commit certain offences and those which encourage discrimination [43]. The Court also had regard to the fact that the Cour de cassation has held that this latter category includes statements which incite feelings of rejection or hostility against a group [43]. In light of the text of the 1881 Act and the jurisprudence of the Cour de cassation, the Court found that the Applicant could reasonably have known that his statements could render him criminally liable [44].

Legitimate aim

The Court found that the applicant’s conviction served a legitimate aim, namely the protection of the reputations or rights of others, in this case, those of Muslims in France [45].

Necessary in a democratic society

The Court considered whether the courts’ interference with the Applicant’s right to freedom of expression was ‘necessary in a democratic society’. The Court directed itself that its task was to satisfy itself that the French courts had reached their decisions by applying standards in conformity with the principles embodied by Article 10 and had relied on an acceptable assessment of the relevant facts [57].

In assessing this question, the Court had regard to the principle set out in a number of cases, including Tagiyev and Huseynov v Azerbaijan [2019] ECHR 875, that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society [51]. The Court noted that, therefore, it may be considered necessary in democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify violence or hatred based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued [51].

The Court then reviewed the relevant factors to be considered when balancing whether the applicant’s conviction was proportionate to the legitimate aim pursued by the national authorities, including—

1. Whether the statements were made against a tense political or social background [52];
2. Whether the statements, fairly construed and seen in their immediate or wider context, could be seen as a direct or indirect call for violence or as a justification of violence, hatred or intolerance and, in particular, whether the statements attacked or cast in a negative light entire ethnic, religious or other groups [52];
3. The manner in which the statements were made and their capacity to lead to harmful consequences [52];
4. The finding in Féret c. Belgique, application no. 15615/07 that inciting hate does not necessarily require inciting a particular act of violence or other offence and that attacks on persons committed through insults, ridicule or defamation and aimed at specific population groups or incitation to discrimination can suffice for the authorities to give priority to fighting hate speech when confronted by the irresponsible use of freedom of expression [54]; and
5. The nature and severity of the applicant’s sentence [55].

The Court next considered the facts of the applicant’s case. The Court found, first, that the applicant’s statements formed part of a debate of public interest [58]. The statements were made whilst the applicant was a guest on a television talk-show, in his role as a journalist and pundit, to discuss his latest book, which included an introduction about the place of Islam in French society [58]. Having regard to the applicant’s notoriety, to the nature of the questions asked during the interview, and to the fact that the interview took place in the context of recent attempted terrorist attacks, the Court considered that the statements were capable of interesting the public [58].

Despite this finding, the Court held that the applicant’s statements did not fall within a category of speech which enjoyed enhanced protection under Article 10 [61]. This is because the Court found that the applicant’s statements contained discriminatory assertions which could exacerbate the rift between French people and the Muslim community as a whole [61]. In particular, the Court noted that the applicant’s statements warning of a ‘colonisation’ of France by ‘Muslims’ were aggressive, expressed without nuance, and had discriminatory aims. These statements were not solely intended to share the applicant’s opinion about the rise of religious fundamentalism in the banlieues with the public [61]. Given these considerations, and in light of Article 17, the Court concluded that the applicant’s statements did not enjoy enhanced protection under Article 10 and that the French authorities had a wide margin of appreciation for restricting the applicant’s right to freedom of expression [61].

The Court next considered the manner in which the applicant’s statements were made and their capacity to lead to harmful consequences. The Court found, first, that the applicant’s statements were capable of reaching a wide audience because of the medium in which they were expressed—the Court noted that the talk show was broadcast live, in prime-time, and that television remains a source of entertainment in many French households [62]. The Court also considered that the applicant, as a journalist, could be expected to understand the impact of his words, to assess their consequences, and to fulfil his professional duties and responsibilities [62], notwithstanding the fact that he was being interviewed in his capacity as an author.

Finally, the Court noted that the Cour de cassation referred to ‘external elements’ that shed light on how the statements were capable of being understood by the people who heard them [63]. For its part, the Court found that the statements were not simply a critique of Islam, but that, taking into account the general context in which they were made and the way in which they were broadcast, they were made with the discriminatory intention of inciting viewers to reject and exclude the Muslim community as a whole, which was damaging to social cohesion [65].

In view of the above considerations, the Court found that the national courts’ motives for convicting the applicant, even though not specifically founded on Article 10, amounted to sufficient and relevant justification for their interference with the applicant’s right to freedom of expression. Considering that the maximum sentence for the offence created by s.24 § 7 of the 1881 Act is one year’s custody and a fine of 45,000 euros and that the Applicant was fined only 3,000 euros, the Court found that the interference was proportionate to the legitimate aim pursued by the national courts [65].

Therefore, the Court held, unanimously, that the interference with the applicant’s right to freedom of expression was necessary in a democratic society and that the French national courts had not violated the applicant’s Article 10 right.

Comment

In this judgment, the Court reaffirmed that although speech inciting discrimination against a protected characteristic is unlikely to be categorically excluded from the protection of Article 10 by Article 17, this type of speech is likely to be afforded very limited Article 10 protection, even where it forms part of a debate of public interest or is political speech.

The Court’s approach to Article 17 in this judgment is in line with a number of previous cases on hate speech, including Perinçek, Féret v Belgium, Le Pen v France, and Soulas and Others v France, in all of which cases the speech in question did not meet the threshold to engage Article 17 and had to be considered from the perspective of Article 10. Here, as in Perinçek, the Court found that Article 17 will only be engaged at the admissibility stage in ‘extreme cases’, but that it can be used as ‘an aid’ to the interpretation of Article 10 § 2, particularly when considering whether the national authorities’ interference is ‘necessary in a democratic society’.

With regard to Article 10, the Court followed the broad approach to the categorization of hate speech taken in Féret v Belgium and Le Pen v France, again taking the view that inciting hate does not necessarily require inciting a particular act of violence or other offence, but can include incitement to discrimination against a protected characteristic [54]. Here, the Court found that because the applicant’s statements were intended to incite viewers to reject and exclude the Muslim community, they did not enjoy enhanced protection under Article 10, even though they formed part of a debate of public interest and even though the applicant was a political commentator and author, as well as a journalist.

Indeed, the fact that the applicant was a journalist, as well as a political commentator and author, was an important factor in the Court’s decision that the French courts’ interference with the applicant’s Article 10 right was proportionate to their legitimate aim of fighting hate speech. Although the applicant appeared on the talk show as an author, not as a journalist, he was not exempted from his journalistic duties and responsibilities. The fact that he was a journalist meant that the Court expected him to be more aware of how his words would impact on viewers and to understand what their consequences were likely to be.

Catherine Arnold, is a future trainee at Matrix Chambers with an interest in media and information law.