Freedom of expression and its limits

A fundamental right guaranteed throughout Europe...

In France, it was Article 11 of the Declaration of the Rights of Man and of the Citizen of August 24 1789, which gave legal existence to freedom of expression: " The free communication of thoughts and opinions is one of the most precious rights of Man: every Citizen may therefore speak, write and print freely, except to answer for the abuse of this freedom, in the cases determined by the Law. ".

Consecrated by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950 and taken up by the Charter of Fundamental Rights of the European Union of December 7, 2000 in its 11th article, freedom of expression is a supranational right which is binding on member and signatory states.

Freedom of expression is guaranteed not only for " information " or " ideas " that are favourably received or regarded as inoffensive or indifferent, but also for those that offend, shock or disturb the State or any section of the population (cf. Handyside v. United Kingdom judgmentof December 7 1976, & 49).

... but not absolute freedom

However, this freedom to freely express one's ideas is not an absolute freedom, and certain limits are imposed on its exercise. Restrictions, for specific reasons, are provided for by law, notably European law. For example, any incitement to discrimination or violence cannot be considered a legitimate exercise of the right to freedom of expression.

Under European law, freedom of expression is governed by the provisions of the second paragraph of Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which circumscribes its exercise and makes it subject to " certain formalities, conditions, restrictions or legal sanctions prescribed by law, which constitute necessary measures, in a democratic society, for national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information, or for maintaining the authority and impartiality of the judiciary ".

Furthermore, this article is limited by another article of the Convention, article 17, which makes provision for: " Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

The purpose of this provision is to prevent people from deriving from the Convention a right to engage in an activity or perform an act aimed at the destruction of the rights and freedoms recognized in the Convention.

Without freedom of expression, there can be no democracy. Freedom of expression is essential to the stability of society, since it contributes to the free flow of ideas. The case law of the European Court gives the press a special status in the exercise of freedoms. According to the European Court: "the press plays an essential role in the proper functioning of a democracy".

However, due to its wide diffusion, the audiovisual industry is regulated by national governments. Audiovisual services must ensure a reasonable balance between the interests of citizens and freedom of expression and information.

Freedom of expression goes hand in hand with freedom of the press, for if "the free communication of thoughts and opinions is one of the most precious rights of Man ", then every citizen can speak, write and print freely, except in the case of abuse of this freedom in certain specific circumstances. Since everyone has the right to express their thoughts, ideas and beliefs, they must also have the right to be informed and to be able to show information.

The French Freedom of the Press Act of July 29 1881 defines the freedoms and responsibilities of the French press. It imposes a legal manager to any publication, as well as to public posting, peddling and sale on the public highway. Article 1 stipulates that: " printing and bookshops are free ".

The case law of the European Court gives the press a special status in the exercise of these freedoms. According to the Court, " the press plays an essential role in the proper functioning of a democracy ".

Technological progress has given rise to the freedom of audiovisual communication. This freedom is not only that of the audiovisual media, but also, and above all, that of individuals, and therefore of the public.

The law of September 30 1986 on freedom of audiovisual communication

The law of September 30, 1986 on freedom of audiovisual communication entrusts Arcom, an independent public authority, with the task of guaranteeing freedom of audiovisual communication and ensuring that all audiovisual communication services falling within the competence of Arcom abide by the principles defined by the law. The first principle is that audiovisual communication is free. It specifies that: " theexercise of this freedom may be limited only to the extent required, on the one hand, by respect for human dignity, the freedom and property of others, the plurality of expression of currents of thought and opinion and, on the other hand, by the protection of children and adolescents, the safeguarding of public order, the needs of national defense, the requirements of public service [...] ".

Arcom's mission is to guarantee freedom of communication, as set out in article 1 of the law of September 30 1986. Freedom of communication means freedom of communication for the public. In reality, it is a question of guaranteeing the public's freedom of opinion. Thiscan only be restricted by way of exception, when certain essential principles are seriously infringed.

Article 1 , which establishes the principle of freedom of communication, lists the various limits to this freedom. While the fundamental principles are set out in the law of September 30, 1986 on freedom of communication, the ethical obligations are essentially enshrined in the agreements signed with private publishers, and in the mission statements and specifications of public publishers. Arcom operates within a precise procedural managerial framework, but in the digital age, regulation must adapt.

Freedom of communication must be reconciled with certain requirements.

Dominique Wolton is Director of the Institut des sciences de la communication du CNRS (ISCC), and founder of the CNRS journal Hermès. Among his many research topics, his work on media, information and communication is of particular importance.

In view of its wide diffusion, the audiovisual industry is regulated. A reasonable balance must be struck between the interests of citizens and freedom of expression and information.

Limits to freedom of communication are therefore contained in article 1 of the law of September 30 1986, in several sub-legislative texts, and in publishers' contractual stipulations.

The law requires Arcom to sign agreements with publishers. The agreements (signed by private publishers) and the terms of reference (signed with public publishers) include clear provisions on content ethics.

The limits are as follows:

• Respect for the human person: respect for the dignity of the human person and the freedom of others means prohibiting the diffusion of programs in which people are reduced to the status of objects. Humiliating and degrading acts, indulgence in the evocation of human suffering, disrespect for the dead and the instrumentalization of the human body all fall into this category. Arcom fights against discrimination and incitement to hatred or violence on the grounds of race, sex, morals, religion or nationality. Arcom contributes to the respect of personal rights relating to privacy, image, honor and reputation, as defined by law and jurisprudence, and in particular prohibits insult and defamation. Arcom can intervene to protect the personal rights of those concerned when complaints are lodged with it.

• Safeguarding public order : this involves: prohibiting incitement to dangerous, delinquent or uncivil practices; taking care not to interfere with ongoing investigations or the work of law enforcement agencies; and fighting racism and anti-Semitism (in particular by ensuring control of the airwaves). Public health is a component of public order. Arcom's mission is to ensure compliance with the provisions of the French Public Health Code. In 2008, for example, it adopted adeliberation regulating the display of unlawful drugs, tobacco and alcoholic beverages. Any image inciting or promoting the consumption of these products is prohibited.

• Independence of information: Arcom ensures that publishers provide information that is "independent" of any financial pressure as well as the economic interests of shareholders and advertisers of audiovisuel groups. Arcom's deliberation of April 18, 2018 on the honesty and independence of news and the programs that contribute to it sets out a number of ethical principles. With regard to independence, the deliberation makes provision for " Thepublisher of an audiovisual communication service shall ensure that news programmes and the programs that contribute to them are produced under conditions that guarantee the independence of the information, in particular with regard to the economic interests of its shareholders and advertisers ". Other key principles include the need for honesty and rigor, and respect for the presumption of innocence when dealing with ongoing judicial proceedings.

Browse Arcom Deliberation of April 18, 2018 on the honesty and independence of news and the programs that contribute to it.

• The honesty imperative: Article 1 of the aforementioned deliberation states that: " Theservice editor of an audiovisual communication service must ensure the honesty of the information and programs that contribute to it. They must avoid any confusion between information and entertainment. For its political and general news programmes, the publisher summons journalists [...] ". This principle requires: that the channel verify the validity and sources of information and, wherever possible, that its origin be indicated; that uncertain information be presented in the conditional tense; that a balanced point of view be adopted in the reporting of events (allowing the opposing viewpoints to be expressed); and finally, that the public be informed of the means used to gather information (hidden cameras, etc.);

• The requirement for rigor: Article 1 also makes provision for: "The publisher guarantees the validity and source of each item of information. Wherever possible, the origin of the information must be indicated. Uncertain information is presented in the conditional tense. The publisher shall demonstrate rigor in the presentation and processing of information. They ensure that controversial issues are presented fairly, in particular by ensuring that journalists, female presenters, hosts and on-air contributors are able to express different points of view". This rigorous requirement implies: placing the information in its context (the use of archive images must be announced by inlay, a reconstruction or a scenario of real or supposed facts must be presented as such, etc.); using images in line with the statements they illustrate (when images or sounds are edited, this must not distort the initial meaning of the statements or images collected, nor mislead the viewer); avoiding any confusion between information and entertainment. For news programmes, the company summons professional journalists. The editor must verify the validity and sources of the information he or she uses.

Procedural framework

Arcom operates within a precise procedural framework.

• A collegial and adversarial approach
• Graduated intervention means
• Constant dialogue with the perpetrators concerned

• A collegial and adversarial approach:

We operate as a collegial body, since the guidelines adopted by the working group are examined by the full council. It is also adversarial, since since the renewal of the college in January 2013, and even though this is not required by law, Arcom ensures that the working group gathers the observations of the channel or radio station concerned when it considers an intervention, and proceeds where appropriate to its hearing. During these hearings, the publisher is sometimes accompanied by the production company that produced the documentary or program. This adversary proceeding leads to the adoption of informed and balanced decisions by the college, sometimes playing a pedagogical role in relations between the publisher and the production company or journalists.

• Graduated means of intervention:

A posteriori intervention: Arcom's regulation always takes place after diffusion, in line with the requirements of freedom of communication. Arcom's action is based on an obligation common to all publishers: that of on-air control. Publishers are responsible for what they show, and must vouch for what they say on air. When a breach due to a lack of on-air control is found, Arcom takes into account the genre of the program and the conditions of its diffusion before giving a ruling. In fact, the seriousness of the breach will be assessed differently if it concerns a program of a humorous or informative nature, a drama programme or a free-to-air program. Similarly, Arcom's assessment takes into account the conditions under which the program is shown (live or deferred broadcasting). When unethical comments are made during a live broadcast, the host must intervene quickly, either by interrupting the speaker or by sentencing the speaker. When the broadcast is deferred broadcasting, such comments should not be made.

Discussed intervention: when a breach of the law is identified, Arcom often holds a hearing with the publisher concerned before taking any formal action, in order to gain a better understanding of the conditions under which the breach occurred, and to determine whether Arcom should take any action. It also interviews associations on subjects of common interest.

Various means of action: when Arcom observes clear breaches of professional ethics, it has several means at its disposal. Arcom often sends letters to broadcasters: either an informative letter or a reminder of the regulations, or a letter of warning noting a proven breach, the repeat offence of which could lead to a formal notice.

Arcom may also decide to use legal proceedings

• a formal notice to warn and/or educate, when a serious breach of the publisher's obligations is identified;
• the opening of legal sanctions proceedings in the event of a repeat offence of the same nature as that which was the subject of the formal notice (on the proposal of an independent rapporteur appointed by the Vice-President of the Conseil d'Etat after consulting Arcom);
• notification of the publisher and publication of the legal sanctions.

The various legal sanctions are as follows :

• suspension of editing, diffusion or distribution of a service category, part of a program or one or more advertising sequences for one month or more;
• reduction of the duration of the authorization or agreement by up to one year;
• a financial sanction, possibly accompanied by suspension of publication or distribution of the service(s) or part of the program;
• withdrawal of authorization or unilateral termination of the agreement.

In all cases of non-compliance with the obligations incumbent on audiovisual service editors, Arcom may order the insertion of a press release in programs, setting the terms and conditions of diffusion.

Some figures on Arcom's interventions

Regulation and audiovisual media must adapt to the Internet and social networks

The possibilities offered by digital technologies to the individual and to media companies in terms of expression, freedom and creation can have implications for the production of content, and in particular information, which call into question and even overturn existing regulatory practices in terms of professional ethics.

• The multiplication of available sources.
• The participation of individuals in the creation of content.
• Changes in the time of day of content.

The multiplication of available sources: The Internet makes a vast amount of information easily and rapidly accessible on a global scale, making it a real asset for the circulation and transmission of information. This abundance of information does, however, entail certain risks for the production of content, both on the Internet and on "traditional" audiovisual media. Indeed, it makes it more complex to verify the origin and veracity of sources, fundamental requirements of journalistic ethics enshrined in operators' conventions(obligation of honesty and, for some, rigor of information). Moreover, digital technologies have amplified a pre-existing risk: that of "faking" sources, particularly images, with modification techniques that are easier to access and use. In addition to cases of deliberate deception, there is also a growing number of risks of errors in the identification and interpretation of sources (e.g. confusion between images of different events, leading to erroneous illustration of information). Since 2010, Arcom has been working to raise awareness among audiovisual operators of the need to take these risks into account when using Internet sources.

Involving individuals in content development: The possibilities for intervention and dialogue offered to individuals by the Internet enable as many people as possible to express themselves. This enables everyone to exercise their citizenship and, in particular, to contribute to public information. The practice of "amateur journalism" is thus made possible by the Internet. It is also being reused by the audiovisual media themselves, through the practice of summoning the public to participate in the development of certain channels' news programmes, by sending in opinions and testimonials.

These developments raise a number of theoretical questions, not least for the profession itself:

- Is journalism necessarily a matter for professionals, or can it be practiced by every citizen?

- Now that news and opinion content can be produced and shown using tools accessible to all (cell phones, social networks, blogs), what criteria mark the boundary between professional and amateur journalism ?

In terms of journalistic practice, the fact that anyone can transmit information and points of view raises the deontological question of editorial responsibility : individuals do not necessarily have in-depth knowledge of certain rules that apply to everyone (e.g.: prohibition of discrimination and discrimination in the media): prohibition of discrimination and summoning hatred, respect for the presumption of innocence, human dignity), and, more specifically, are not subject to the specific rules of a professional code of ethics (e.g.: verification of sources, rigor of information).

Changing the time of day of content

On the Internet, the temporal relationship between the sender and receiver of content differs from that of linear television or radio diffusion.

Information is published and modified much more quickly and instantaneously. This implies a potentially lesser drop in the availability of content. What's more, this speed can sometimes be a source of imbalance in terms of access to information, with linear audiovisual media tempted to follow a faster pace to compete with online media (e.g.: reposting of statements, news, rumors circulating on social networks), with an increased risk of not taking the time to check the reliability of the information. What's more, the lifespan of content on the Internet fluctuates: it can be deleted very quickly, resulting in less traceability, or it can remain available to the public for a long time, which increases the risk of harmful effects from problematic content and may require more urgent intervention.

As a statement of case, we'll begin with a few key points to help you understand the context in which the French authorities and the European Union are acting.

Viral propagation of false information : Fake news and racist and anti-Semitic opinions seem to have found their breeding ground in the digital space. The fluidity of the circulation of such content, but even more so the fragility of the normative framework governing the operation of this space, in fact allows the expression of all points of view, including the vilest and least authentic. Materially, fake news and racist or anti-Semitic opinions both seem to draw on the source of the same ideology. This is based on two postulates: on the one hand, the truth is not where it is supposed to be; on the other, the truth is hidden from the recipients of the information produced by the " mainstream media ", in order to protect the interests of a fantasized minority. M.Wievorka thus identifies " the contemporary culture of the Internet and interactivity, open to the immediate and unlimited circulation of ideas and opinions, and leading to "fake news" and post-truth " as one of the current ferments of the proliferation of anti-Semitic opinions.

Find out more about fight agains information manipulation

Worrying rise in hate speech on the Internet: What studies are available to characterize the phenomenon of online hate? What are the results? Figures for measuring the phenomenon are constantly developing, and sources are scattered. However, a few data allow us to appreciate the scale and complexity of a growing phenomenon. In 2017, the Laboratoire Société Numérique set up by the government reported that the Pharos website had collected 153,000 reports. After a sharp rise in 2015 (188,055 in 2015), mainly linked to the attacks that struck France that year, the number of unlawful Internet content reported to the Pharos platform fell in 2016 and then in 2017.

In February 2019, as part of the publication of the report on the fourth evaluation of the application of the Code of Conduct on Combating Online Hate Speech, the European Commission reported the following data: according to IT companies, 89% of content reported within 24 hours and 72% of content considered illegal hate speech is removed, compared with 40% and 28% respectively when the code was launched in 2016. Furthermore, according to the figures put forward by the European Commission in the same report, the content censored mainly relates to xenophobia (17%), hatred on the grounds of sexual orientation (16%), anti-Muslim hatred (13%), anti-Roma hatred (12%) and anti-Semitism (10%).

Finally, the daily Sud-Ouest recently reported thefollowing figures :

• Nearly 1.3 million items of hateful content have been reported to Twitter in the last six months;
• Facebook took action on 2.9 million pieces of content in the third quarter of 2018, compared with 2.5 in the first and second quarters of the same year and 1.8 million in the last quarter of 2017;
• YouTube, in the last quarter of 2018, removed almost 16,600 channels and 49,600 videos inciting violence or violent extremism, to which must be added the 253,700 violent videos and 18,950 videos with offensive or hateful content revoked, figures that are clearly on the rise.

Notwithstanding the profusion of figures, the scattered and non-centralized nature of this data argues in favor of the creation of an online hate observatory. Such an observatory was set up by Arcom on July 8, 2020, with the mission of analyzing and quantifying the phenomenon of online hate, improving understanding of its drivers and dynamics, and promoting information sharing and feedback between stakeholders.

Faced with this situation, how are the authorities responding?

The law of December 22, 2018 on the fight against the manipulation of information: this law, which aims to better protect democracy against the various forms of intentional diffusion of false news, gives Arcom new missions. The notion of "false news" already exists in French law(article 27 of the July 29, 1881 law on freedom of the press and article L. 97 of the electoral code). However, due to the strict interpretation given to the notion of "false news" in specific cases, the existing legal manager had to be adapted to take account of the unprecedented phenomenon of " false information ". The new law therefore complements and strengthens a manager deemed unsuited to today's digital environment, where infox spread virally. To this end, the law sets out two categories of missions: with regard to audiovisual services (1) and platforms (2).

1. For audiovisual operators (television or radio services)

A distinction must be made between two phases: the election period and the non-election period.

During the election period :

Arcom may suspend, for a maximum period not exceeding the holding of the ballot, the diffusion, by any distributor, of a television or radio service controlled by a foreign state or under its influence, which deliberately broadcasts false information likely to alter the sincerity of the ballot. Arcom's decision is taken after adversary proceedings with the publisher, within 48 hours (article 6 of the law).

Outside the election period :

• Refusal of agreement: Arcom can also (art 5 of the law of 22.12.18) refuse an application for agreement. This refusal may be made, regardless of the identity of the applicant, where there is a serious risk of undermining certain key principles of the nation (e.g. the regular functioning of institutions, or where the very nature of the service's diffusion would constitute an infringement of the laws in force). When the request is made by an artificial person controlled by or under the influence of a foreign state, Arcom may give a ruling taking into account the content published on other services by the applicant, its subsidiaries, the artificial person controlling it or its subsidiaries.
• Termination of the agreement: outside election periods (article 8 of the law), Arcom may, after formal notice, unilaterally terminate the agreement with an artificial person controlled by or under the influence of a foreign state, if the service in question undermines the fundamental interests of the Nation (including the proper functioning of its institutions) through the diffusion of false information (article 8 of the law).
• Expanded possibilities for referral to the President of the Litigation Section of the Conseil d'Etat: Finally, on the basis of article 42-10 of the 1986 Act, Arcom may submit a demand to the Conseil d'Etat to halt the diffusion or distribution by a satellite operator or distributor of an audiovisual communication service falling within the competence of France and controlled by a foreign state or under its influence, if the service in question undermines the fundamental interests of the nation (e.g. the regular functioning of its institutions), notably through the dissemination of false information.
• Strengthening media and information literacy: The law amends the Education Code to strengthen media literacy training for pupils and students, particularly on the Internet and platforms for fact-checking and critical analysis of information. Finally, agreements between Arcom and publishers can cover measures for media and information literacy.

2. For platforms

Distinguishing between election periods and non-election periods, the law creates new obligations for platform operators (obligation to cooperate and obligation of enhanced transparency), strengthens Arcom's powers to ensure that certain of these obligations are met, creates new remedies before the juge des référés to guarantee the protection of freedom of expression, and finally promotes media and information literacy.

Obligation for online platforms to cooperate

Platforms with more than 5 million single visiters in France per month are obliged to:

• Take measures against the spread of false information: reporting tools, transparency of algorithms, information on the origin of content, promotion of reliable media companies and communications agencies, strengthening of their media and information literacy schemes, etc. ;
• Communicate on these measures and their cost;
• Appoint a legal representative in France;
• Send an annual declaration to Arcom concerning the actions and measures taken by the operator to comply with the obligations referred to above. Arcom monitors the implementation of these obligations and their effectiveness, and makes this information public. It may issue notices to platforms (articles 11 and 12 of the Act).

Strengthened transparency obligations for online platforms (election period)

The law has also created a series of strengthening transparency obligations for operators during election periods. For three months prior to the first day of the month in which general elections are held, and up to the date of the ballot, operators are required, in the general interest of informing citizens and ensuring the fairness of the ballot, to provide users with fair, clear and transparent information on the identity of persons paying for the promotion of such content, on the amounts paid for such promotion, and on the use of users' personal data in connection with the promotion of such content (article 1 of the Act). Platforms are required to aggregate this information in an accessible register, in an open and regularly updated format (same article).

The legislator has given Arcom a role in monitoring compliance with these new obligations. It can thus, under Article 12 of the 2018 law, issue notices to these new players.

Provisions of Law n°2018-1202 against the manipulation of information of December 22, 2018:

• Strengthened transparency obligations for platforms.
• Obligation of cooperation for online platforms
• Extension of Arcom's powers (agreement, suspension of services, cooperation with platform operators as part of the notices issued by the Authority.

The law against hateful content on the Internet

Until now, Arcom has only been responsible for fighting hate speech in the linear media. Faced with the increase in hateful and racist content on the Internet, the law against hateful content on the Internet (known as " loi Avia ") passed by the French National Assembly on May 13, 2020, sought to entrust Arcom with new missions in order to curb this phenomenon.

However, in its decision of June 18, 2020, the French Constitutional Council censured these schemes and in particular the one that obliged online platform operators and search engines to revoke manifestly unlawful content such as hate speech, racist or anti-religious insults within 24 hours of notification by one or more persons. For terrorist or child pornography content, the deadline for removal was reduced to one hour.

The text promulgated on June 24, 2020 is now limited to the creation of an online hate observatory, responsible for monitoring and analyzing developments in hate content, in conjunction with the operators, associations and researchers concerned. The observatory is attached to Arcom, and met for the first time on July 23, 2020.