Constitutional Council Rules France’s New Website Law Unconstitutional


View over Paris at dusk, from the Maine-Montparnasse tower. Courtesy Benh Lieu Song/Wikimedia.

On February 10, 2017, France’s Constitutional Council, the nation’s highest constitutional authority, struck down Article 421-2-5-2 of the French Criminal Code, holding that the law was unconstitutional. The law criminalized frequent visits to websites encouraging terrorism through the use of images or representations of terrorist acts (e.g. videos of beheadings).

Article 421-2-5-2 of the French Criminal Code was passed after a string of terror attacks throughout France, which caused widespread fear, and lead to a declaration of a state of emergency that remains in effect today. The Islamic State of Iraq and the Levant (“ISIL”) has claimed credit for a couple of these attacks. The French parliament was also concerned with increasing numbers of ‘radicalized’ French citizens:  a 2016 report found that the largest group of European fighters within ISIL’s ranks comes from France. Some French civil rights leaders have claimed that policies like this law, created during the state of emergency, have unfairly targeted Muslim citizens and infringe upon the constitutional rights listed in France’s Declaration of the Rights of Man and of the Citizen.

The Constitutional Council’s review of Article 421-2-5-2 of the French Criminal Code arose from a case involving the conviction of a thirty-two-year-old man under the law. Under the authorization of the local administration, police conducted a raid on his house and found pro-ISIL imagery and videos depicting executions on his devices. According to police, his computer’s desktop was emblazoned with an ISIS logo and he had visited “jihadist websites” over a span of two years.

In court, the accused (who has not been publicly identified) argued that he browsed the sites out of curiosity. The court rejected that argument and he was sentenced to two years in prison for violation of Article 421-2-5-2 of the French Criminal Code, and a €30,000 fine.

After sentencing, the man submitted a request to France’s highest court for consideration of a Question Prioritaire de Constitutionalité (an expedited ex post facto review of a law) to ascertain the coherence of Article 421-2-5-2 of the French Criminal Code with the French constitution.  His argument centered on how the vagueness of the law infringed upon his constitutional rights. The French Constitutional Council (which hears such motions) agreed, finding that the law was an unnecessary and disproportionate infringement of the freedom of communication. The Council also opined that the law was not critical to national security, because law enforcement agencies already had sufficient available resources to tackle terrorism (e.g. by monitoring websites that incite militancy). 

As a result of the ruling, Article 421-2-5-2 of the French Criminal Code was abrogated with immediate effect. Nevertheless, a number of similar regulations (also enacted during the state of emergency) remain in place. One such decree was passed after the 2015 Charlie Hebdo attacks, and allows the government to censor (without a court order) websites that promote terrorism. Another piece of legislation grants intelligence agencies broad surveillance powers, allowing them to tap phones and monitor emails without permission of a judge.

All of these reactionary regulations are examples of how the French government has abridged citizens’ fundamental freedoms in the name of national security. The growing trend in France towards aggressive legislation and social policies aimed at identifying radicalized citizens also raises the specter of mass surveillance.

France is not alone in this trend towards increased counterterrorism legislation. There are signs that other European countries may soon follow suit:  the draft counterterrorism directive proposed by the European Parliament, which would allow Member States to “block access to web pages publicly inciting others to commit terrorist offenses” is one very real example. As was the case with Article 421-2-5-2 of the French Criminal Code, the European Parliament’s draft counterterrorism directive is vaguely worded, which, according to rights groups makes it “ripe for abuse.”

Whitney Lee is a second-year student at Columbia Law School and an assistant online editor for the Journal of Transnational Law. She graduated from Harvard University with a degree in Government.