French police: planned powers could threaten free expression

Global Security Bill may restrict publication of images containing police officers’ faces

At the very core of France’s constitutional law, the Déclaration des Droits de l’Homme et du Citoyen (DDHC) guarantees the liberty and equality of all citizens. It sets out numerous basic rights, including those of free speech and thought, stating that “the freedom to communicate thoughts and opinions is one of the most precious rights of humans”.

Plans for new “global security” measures drawn up by France’s politicians threaten the country’s two-hundred-year-old trinity of libertéégalité and fraternité, however. Last week, MPs from the Assemblée Nationale, France’s lower house, voted in favour of the Global Security Bill N°3452, a law-and-order package which includes proposals to use drones to monitor protests and increase the presence of private security agents. Proposed by MPs from President Emmanuel Macron’s party La République en Marche (LREM) and gaining support among centrists and conservatives, the bill has now been sent to the Sénat, the country’s upper house.

The bill’s twenty-fourth article is the most contentious. When the bill was approved by the Assemblée on 24 November, it proposed criminalising the act of publishing images which include the faces of police officers if the publisher is found to have “the express aim of violating the physical or psychological integrity of a national police officer, a member of the national gendarmerie or municipal police officer”. But opponents say that the “liberticidal” proposals would endanger free expression by preventing individuals from recording police officers’ activities. On this basis, law enforcers would be set apart from ordinary people. According to demonstration organisers, as many as 500,000 people (France’s Interior Ministry recorded at least 133,000) took to the streets on 28 November in defiance of the plans.

For several years now, many politicians and voters have called for French police officers to be better protected. Attacks on the country’s officers have almost doubled over the last fifteen years, from 3842 attacks in 2004 to 7399 attacks in 2019. As one would expect, the measures outlined last week in Article 24 have proved very popular with France’s main police union, the SCSI-PN. Its General Secretary Christophe Rouget said a few days ago that “we are in a climate where police officers experience aggression and violence and are threatened by witch-hunts on social media. Therefore, it is necessary to protect them.”

Ensuring the safety of law-enforcement authorities is imperative. Yet, using Article 24 to prevent citizens from publishing videos featuring officers’ faces on the grounds that they could question an officer’s character infringes upon Article 11 of France’s DDHC. Article 11 of the DDHC specifies that the freedom to speak, write and print freely is inalienable except in situations whereby citizens are found to “abuse this liberty in cases determined by law”. But the fact that France’s Defender of Rights, Claire Hédon, has argued for the “withdrawal” of Article 24 goes to show that filming those in positions of authority does not always constitute a misuse of this freedom, and is an important form of social criticism. According to Ms Hédon, video evidence is vital for identifying police “misconduct”. Furthermore, legislation already exists to allow the prosecution of individuals for publishing images of anyone online with malicious intentions. The fact that Article 24 seeks to restrict a specific means of free expression, however, crosses the line.

In fairness, Article 24 in its current form does specify that the publisher of images would only be breaking the law if an “express aim” of causing harm could be proven. But exactly how the law would be interpreted and implemented is unclear. Some are concerned that police officers would effectively have the power to decide whether a citizen is capturing images with the “express aim” of causing harm before a judge could view the situation from a purely legal standpoint.

Making a step in the right direction, LREM parliamentary leader Christophe Castaner announced on Monday that the government would progress with “neither a withdrawal nor a suspension, but a total rewriting of the text” of Article 24. But whilst re-writing the law is a positive action for free speech, it is certainly not the same thing as shelving it entirely. The re-written version of Article 24 could provide some reassurance, but it may well be a poisoned chalice, simply masking the same intentions behind different words.

Plans for increased police protections will not be scrapped without a fight. Whilst some MPs may be comfortable with a similarly aimed article being implemented in coordination with another bill on “separatism” – read “terrorism” – which prevents any online attacks against “agents of the state”, others are less likely to change their opinions. On French radio, Marc Fesneau, Minister for Parliamentary Relations and Citizen Participation, emphasised that the ideas behind Article 24 were useful.

The Article 24 debacle demonstrates the sensitivity of the police-powers debate. Police officers must be kept safe, yet measures introduced with this goal cannot threaten basic civil liberties. The plans appear particularly hypocritical in the context of President Macron’s intention to make police body cameras widespread in France from July 2021. They are even more controversial when viewed alongside recent incidents of needless police brutality. Only a few days ago, a police officer tripped up a refugee whilst removing tents from the Place de la République in Paris (a rather fitting symbol). The IGPN, France’s police disciplinary body, has since reported that the officer “used disproportionate force”. Furthermore, the day after a crucial debate on the global security bill, police physically and racially abused musician Michel Zecler in his own home for not wearing a mask in public. Fortunately, the incident was caught on CCTV. Additionally, the reason for the death of 24-year-old Adama Traoré, who has become a symbol of police violence in France, is still unknown. Traoré’s family believe that Adama died in custody after being asphyxiated by police officers when he was unable to show ID papers and escaped. By contrast, an official investigation attributes his death to heart failure. Perhaps video footage would have revealed the truth.

Despite causing grave harm to decades-old values of liberty and equality, the authoritarian approach of French politicians towards “global security” challenges – national security challenges, in truth – is a calculated one. It cleverly appeals to the voters needed by centrist President Macron in order to win the 2022 Presidential Election. As mentioned in a previous article on this blog, Mr Macron, will probably be running against the leader of the far-right Rassemblement National, Marine Le Pen, in the election’s head-to-head second round. In order to be among the two most popular candidates after the first round of the election, based on a nationwide first-past-the-post vote, Mr Macron must grab the support of right-wing voters who could otherwise side with the more extreme Ms Le Pen or France’s traditional right-wing party, Les Républicains. An uncompromising security strategy like that of the global security bill sits well with such voters. Ms Le Pen has already spoken positively of Article 24, saying that it is a step “in the right direction”. But despite Ms Le Pen’s 2017 presidential election pledge to govern “in the name of the people” and affirm the fact that “the people are sovereign”, policies such as those of Article 24 only weaken the freedoms enjoyed by French citizens.

The bill to which Article 24 belongs has “global security” in its title. But positioned within an international context, it sets a particularly negative precedent for other countries when it comes to balancing security priorities with civil liberties. Following Brexit, France will be one of Europe’s most influential security powers. Its domestic politics matters. The Article 24 debate should encourage France to come back to its own constitutional law, the DDHC stating that all citizens are “born and remain free and equal”. Whether they will remain as free and equal in the 2020s as at the founding of the Fifth Republic, however, is yet to be seen.

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