online education

Statements towards a spiritual neighborhood: the place does the crime start?

The dissemination of statements in public against certain population groups, especially Muslims, occurs again and again. The reference to the “great replacement” or the meanwhile perpetual confusion between Muslims and foreigners, when they can be qualified as fake news in view of their obvious incorrectness, invite us to reexamine the limits of freedom of expression.

The law of July 29, 1881 on the freedom of the press initially provided for two criminal offences: public insult and defamation. The law of July 1, 1972, known as the Pléven Law, adds a third offense punishable by one year’s imprisonment and/or 45,000e against persons who have provoked through public statements “discrimination, hatred or violence against a person or a group of people because of their origin or their belonging or not belonging to a certain ethnic group, nation, race or religion”. This article is about that crime.

At a time when statements aimed specifically at Muslims are proliferating, it is worth considering the cursor set by the judiciary to determine what does and does not fall under this offense. About twenty decisions recently examined make it possible to identify two elements that are particularly the subject of the judges’ attention: the objective determination of a group of people and the interpretation that the term “provocation” should have.

Criticism of Religion or Comments on Practitioners?

In order to fall within the scope of the offense, statements made in public must be directed “against a group of people because of their religion”. Clearly and consistently, the judge excludes statements about religion or its regulations from the area of ​​the crime. Thus, even vehement criticism of religion is to be distinguished from statements about the (supposed) practitioners themselves. For example, a political leaflet denouncing the funding of a Muslim sect or criticizing a religious practice such as animal slaughter would not fall under the offense as they are not aimed directly at a group of people.

Other comments are more difficult to assess: for example, a pamphlet in which the author imagines the disappearance of Islam and the fate reserved for its followers. These statements then require a much more in-depth control on the part of the judge, only the statements addressed to the followers make it possible to qualify a “group of people on the basis of their religion”.

What are the reprehensible words?

Judicial jurisprudence has gradually shifted from a broad interpretation of the term “provocation”, which allows statements that arouse a feeling of hostility, rejection or hatred to be sanctioned, to a strict interpretation, which then allows only statements to be sanctioned , who urge, also implicitly call for hate, discrimination or violence. However, there is an undeniable difficulty in making this distinction: positioning the cursor between statements that evoke rejection, a sense of hostility toward a group of people, and statements that evoke hatred or a reaction, discrimination, or violence is particularly difficult to discern. In fact, the now-common usage of the phrase “great replacement,” which should nonetheless be questioned, is not to be construed as a phrase that evokes only a sense of hostility or resentment. Murders have already occurred based on these theories, from the Christchurch shootings in Australia to the Buffalo, New York state shootings in the United States.

If legally the strict interpretation of the provocation corresponds more to the principle of the strict interpretation of criminal law, it is not necessarily adapted to social reality. Indeed, the impact of such remarks on social cohesion is undeniable, and the cursor thus fixed gives free rein to theories and remarks that may prove dangerous.

This also raises the question of the distribution channel, which should be given more consideration as it affects the audience of the comments. In any case, the mere punishment of statements that contain a “provocation”, that is, a call to action, is not enough to counter dangerous ideologies and create problems in terms of social cohesion. The exponential increase in such abuse and the media reality are therefore putting this current legal situation to the test.

Jurisprudence tested by the increase in verbal abuse

From now on, the term “grand replacement” will be used in the French public debate in prime time without arousing any particular emotion. This statement, as well as the allegations that accompany it, are often made under the guise of immigration debates, causing confusion between Muslims and foreigners. This phenomenon, which is now part of the media and political scene, is being studied by other disciplines and leading to a review of the current legal situation.

In fact, the penal system is not fixed, and the criminal offenses provided for by law evolve with society. In the field of criminal law, for example, it would therefore be possible to condemn public statements that arouse a feeling of hostility or rejection. Such a tightening of criminal law in the area of ​​freedom of expression would also be in line with the case law of the European Court of Human Rights. The latter had already declared this position to be compatible with Article 10 of the European Convention on Human Rights in 2004. More recently, the ECtHR has held that statements equating people of Muslim faith with crime and insecurity tend to evoke strong feelings of insecurity, rejection and hostility towards this group. It would therefore depend on adapting the legislation to the changed content of public statements.

The need for effective complementary measures

No prison system works without a real investment in education, a preventive tool of paramount importance. Effective additional measures, especially in the area of ​​education and awareness-raising, are therefore essential. In addition, the European Court of Human Rights recalled in its jurisprudence as early as 1976 that freedom of expression is necessary to guarantee pluralism, tolerance and the spirit of openness without which there can be no democratic society.

The scale of hate speech has also prompted the Office of the United Nations High Commissioner for Human Rights to hold the first International Day for the Elimination of Hate Speech last June. Moreover, as researcher Charlotte Denizeau reminds us, the Council of Europe and the European Union were “erected in response to fascist crimes which, before they were committed, were part of the ideological discourse”. The European continent, throughout its history, must therefore prevent the spread of ideologies that incite hatred and then violence against certain groups of people.

At national level, it would therefore be pragmatic to act on two levels: to further develop legislation to combat online hate and to invest more extensively in raising awareness of these issues, to distance comments on large antennas and on social networks, a minimum threshold of knowledge, which is essential to ensure the peaceful and shared exercise of fundamental freedoms.

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