With respect to the French response, it is first important to highlight the Constitution of France. The French Constitution is divided into two parts. The first part - also known as the Declaration of Human Rights [22] (or Rights of Man) - deals with basic freedoms. Written after the French Revolution in 1789 (and unchanged ever since), it eventually became the International Declaration of Human Rights [23] fifty years ago. The second part is the Constitution [24] and deals with the balance of power between all the different institutions, such as the Executive power (the President), the Legislative power (French Parliament) and the Judiciary. This second part has already changed five times from the initial version, because of the First and Second French Empires, the Restoration, and finally the two World Wars, as well as the loss of their colonies. This is why the Constitution states in the Preamble:
"The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946".
Therefore, the only clauses regarding freedom and censorship can be found in the Declaration of Human Right, Article 11:
La libre communication des pensÈes et des opinions est un des droits les
plus prÈcieux de l'homme. Tout citoyen peut donc parler, Ècrire, imprimer
librement; sauf # rÈpondre de l'abus de cette libertÈ, dans les cas dÈterminÈs par
la loi.
Everyone has the right to freedom of opinion and expression. Every citizen can
therefore speak, write and print freely; but may need to respond if freedom is
abused in cases determined by law.
In the International Declaration of Human Rights (accepted by the United Nations, and therefore applicable in France as well) we see the following:
Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom,
either alone or in community with others and in public or private, to manifest
his religion or belief in teaching, practice, worship and observance
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.
1 - Everyone has the right to freedom of peaceful assembly and
association.
2 - No one may be compelled to belong to an association.
Finally, the Article 10 of the European Convention of Human Rights [25] states:
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are described by law and are necessary in a democratic society,
in the interests of 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 information received in confidence, or for
maintaining the authority and impartially of the judiciary.
This being said, this is close to the First Amendment of the US Constitution, and therefore, there should not be any kind of censorship. However, recently, there was a big controversy regarding what is known as the Yahoo! Case. "Two French anti-racist groups, the Union of Jewish students and the International League Against Racism and Anti-Semitism have today got Yahoo!, one of the world's leading internet service providers, before a French judge" [26]. The issue is whether Yahoo! will follow a ruling banning French access to Nazi memorabilia online auctions. Such an auction is legal under US laws, but illegal under French law because France prohibits the sale of items that incite violence or racism [27].
This decision was widely discussed because many saw it as a violation of individual freedom as well as many principles of the French Constitution. For its defense, Yahoo! claimed protection under the First Amendment of the United States Constitution regarding the freedom of speech, but it was not necessary since the French constitution is also protective about this principle. The first problem regarding this judgment is the French law is not applicable about a foreign content broadcasted from a foreign country. In fact the Article 10 of the Convention EuropÈenne des Droits de l'Homme [25] (European Convention of Human Rights) regarding freedom of expression states, as noted before:
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are described by law and are necessary in a democratic society,
in the interests of 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 information received in confidence, or for
maintaining the authority and impartially of the judiciary.
Therefore, even this article was enough to prevent Yahoo! from further lawsuits. The second problem is that the article R 645-1 of the French penal code, regarding the exhibition of Nazis articles is just a decree, not a law since it was not approved by the Parliament, and according to the Article 11 of the Declaration of Human Rights, only a law can restrain the freedom of speech.
"the free communication of opinions and thoughts is one of the precious right of man; so each citizen can freely speak, write, print; except when he could be considered responsible of an abuse of this freedom in the cases determined by the law."
This was confirmed by the Conseil Constitutionnel (Constitutional Council) in 1996, regarding the Fillon amendment, about internet censorship [28], [29]. However, the "French judge ordered Yahoo to prevent French users from accessing a broad range of Nazi-related material, despite Yahoo's objections that such an order would be technically impossible to carry out. The judge said Yahoo would be fined about $13,000 for each day it did not comply. The issue was made relatively moot in January when Yahoo banned hate-related items from its auction pages, though Third Reich stamps and coins remain acceptable. The move was made as Yahoo began charging users to make auction listings, and the company did not want to profit from such material". [30]
There has been a long
history of network censorship and revocation of freedom of speech that have
been brought about by the French government. There was the aforementioned 1996
Amendment Fillon, which included the creation of a Conseil de Telematic (the
French term for electronic material), which might have had the official power
to judge what could be deemed legal in cyberspace. The Conseil Constitutionnel,
which reviews French law, overturned the regulation, explaining that matters
related to freedom of expression can only be settled in courts of law or by the
French Parliament.[37]
There was also the
G,bler affair - the first case concerning the Internet in France -, which drew
considerable public attention to the existence of the Internet. In January
1996, a few days after the death of FranÁois Mitterrand, a book was published
by Mr. Gonod, a journalist and the ex-personal physician of the President, Dr.
G,bler. In it, the doctor stated that FranÁois Mitterrand had known about his
cancer since the beginning of his first term in 1981 and also revealed many
details about his illness and private life. In summary proceedings the
Mitterrand Family obtained a court order to ban the book. Shortly after the ban
was enacted, the manager of a cyber cafÈ in BesanÁon scanned the book and put
it on a web server in the name of freedom of expression. A few days later, the
Web service was closed.[38]
There was the following
found instance of a person who was prosecuted for using the Minitel- a French
public computer network- to access pornography and distribute images deemed by
the government to be pornographic. She was declared guilty of the offence of
manufacture and pornographic diffusion of messages to character likely to
attack human dignity, on the base of article 227-24 of the Penal code, since
the messages were likely to be read by minors and that the devices set up did
not guarantee material impossibility to take note of it.[39]
Another example of net
censorship on public terminals can be found at the Bibliotheque publique
d'information, located in the Beaubourg cultural center in Paris. The BPI
decided last year to test the Internet Explorer Administration Kit, a
customized version of Microsoft's IE, as a tool to block specific designated
web sites on all machines of the local networks. The idea was to possibly
'customiseí the censorship, where the selection could be manipulated by
government officials according to politics ups and downs.[40]
Perhaps the most
flagrant example of restriction of the freedom of speech perpetrated by the
French government was the The Liberty of Communication Act, passed in 2000. This
act stipulates that users are required to fill out an online registration form
in order to post any content to the Internet. This explicitly restricts free
speech by requiring you register with the French government prior to publishing
on the internet. Supporters of the bill say it is neccesarry to hold
individuals accountable for content they publish on the internet, but those
opposed think the law goes too far. [41]
These instances together paint a picture of a system of laws that do not hold any recognizable form of absolute civil liberty. It is as if the rules laid down by the French constitution are to be followed in theory, but in practice they sometimes get bent and broken between the disparate gears of French politics.
Based on the actions of the French on this censorship case, the reaction to the scenario described earlier can be examined. As has been shown, France law leans toward censorship of material that the French government finds offensive. Nazi memorabilia may be offensive to people in France, but it is most likely not a view shared by the entire population since it is difficult to get an entire population to support one opinion. The idea that people should be able to view and purchase what they want is not supported by the actions of the French in the Yahoo! case. Therefore the French government is unlikely to support the idea of free expression for everyone.
Regarding the scenario of banning access to sexually explicit materials by state workers, the French government would support such a ban. The government believes they have the right to ban what they deem inappropriate on the internet. Since pornography is typically considered inappropriate for a worker to view, France would impose restrictions on viewing such works.
However, the culture of the French population would disagree with such a ban. Sexual material is not as restricted on other mass media such as television and movies as they are on US television. Sex is routinely shown on primetime television. The French people are more open-minded and used to sexual exposure that it does not bother them. The result is that "fact that the French have a world reputation for eroticism, yet are restrained and extremely discreet in social settings." [31]
Therefore, while the French government would support internet access restrictions on sexually-explicit material by state workers, the French population would oppose such bans because the material is not as offensive to them as it would seem for American citizens.
Regarding all that was previously stated, French people may seem opposed to such a law because of the Article 11 of the Declaration of Human Rights. This is important to remind that this article is close to the first Amendment of the US constitution regarding freedom of speech, since it states:
"the free communication of opinions and thoughts is one of the precious right of man; so each citizen can freely speak, write, print; except when he could be considered responsible of an abuse of this freedom in the cases determined by the law."
In addition, French people are much more used to nudity and pornography than in the United States. In fact, there is no official censorship regarding television broadcast. This is why some explicit sexual scenes are not unusual on prime time. Only television broadcasters can choose, on their own, not to broadcast a movie in prime time if it feels the content would not be appropriate. But it is important to emphasize there is no official position regarding it. The Conseil SupÈrieur de l'Audiovisuel (Superior Council of audiovisual) is responsible for a rating of the movies, such as the PG, PG-13, R similar than those applicable in the United States, but it is just to have French people aware of the content. There is no censorship of any kind regarding the movies. The best example that can highlight what was previously stated is Basic Instinct (1992), rated R in the United States because of strong violence and sensuality, and for drug use and language [32] , but broadcasted uncensored in France, in primetime.
Therefore, it may appear obvious that a law banning access to sexually explicit materials by state workers would not be accepted. However, the clause that needs to be highlighted in the Article 11 of the Declaration of Human Rights is the one that states:
"except when he could be considered responsible of an abuse of this freedom in the cases determined by the law."
The point is that in France, a decree is suggested by some members of the Parliament, which is enough for having it added in the French Penal Code, but have to be accepted by the absolute majority of the Parliament (50.1 %) to become a law. Therefore, French citizens' agreement is not required for the acceptance of such a law. This is a weakness of the French political system, and as a conclusion, it may be possible that such a law be accepted.
The final commentary that can be said regarding French position in such a debate is that because of the European Union, French laws and constitution are subject to change. In fact, the debate regarding a European Union as a Union of Federal State versus a Union of National State is open, and widely discussed, as mentioned in this BBC article. [33].
Therefore, if the Union of Federal State comes true, this will require from all the European countries, part of the Union, to come up with a common law regarding freedom of speech:
"Mr Jospin has proposed a European constitution, based on the Charter of Fundamental Rights, endorsed by EU leaders at last year's Nice summit. The charter sets out a range of civil, political and social rights." [33]