On October 16, the Union des Étudiants Juifs Français (Union of French Jewish Students, UEJF) asked Twitter to remove several racist and anti-Semitic tweets. Using the hashtags #unbonjuif and #unbonmusulman ("agoodjew" and "agoodmuslim," respectively), some Twitter users were posting derogatory comments about Jews and Muslims, some allegedly meant to be 'jokes.'

The UEJF president, Jonathan Hayoun, and the UEJF legal representatives had a conference call with Twitter's senior management, in which the UEJF asked Twitter to remove the tweets in question. Twitter initially had refused to delete them, and had also refused to provide the UEJF with the identities of the users.

But on October 28, the UEJF announced that Twitter had started removing the anti-Semitic tweets. It is not yet clear whether Twitter also provided the identities of the authors of the tweets, but it is unlikely it would do so without an order from a French court.

The French Minister of Justice, Christiane Taubira, issued a press release, stating that posting racist or anti-Semitic messages on social media sites is punishable under French law, and that they are “in absolute contradiction with the fundamental values of our Republic and are not acceptable. The virtual channel does not make these acts less real and the perpetrators may be brought to justice.”

Indeed, the UEJF issued a statement, indicating that it will ask the French courts to require that Twitter complies with French law and provide the identity of the authors of the tweets. What is the applicable French law?

Defamation and Humor

Defamation of a particular group is a crime in France. Defamation is defined by article 29, § 1, of the French law on the freedom of the press (the "Loi sur la liberté de la presse," or "French Press Law") as a statement alleging or attributing a fact detrimental to the honor and consideration of either a person or a group. Its article 32, § 2, incriminates defamation based on a person’s belonging to a particular nation, ethnicity, race, or religion.

Therefore, under French law, the author of a message attributing or alleging any specific facts detrimental to the honor and reputation of the Jewish or the Muslim community is potentially liable for defamation. But what if the speech is labeled a joke?

The French courts have previously considered the intersection of defamation and humor. For example, France’s highest civil and criminal Court, the Cour de Cassation, confirmed in 2007 the judgment of the Court of Appeals of Paris, which had held that a French stand-up comic did not publicly defame Jewish people when imputing extremist ideas to them during a television broadcast. The Court of Appeals had described the comedian's words as “rambling, provocative, and with the goal of being humorous,” and held there was no defamation, noting that in context the speech “belonged to political arena and did not comprise, by evoking facts sufficiently precise, imputations prejudicial to the honor or reputation.”

The UEJF, which was one of the plaintiffs in the case, had argued that the defendant should not be shielded from criminal penalties if the statements were found to be defamatory merely because he was a professional comedian and the show was known for its provocative tone. However, the Court of Appeals' determination that the speech did not convey precise meaning avoided the question of whether a mere invocation of humorous intent was sufficient to avoid liability.

Fighting Words as Setting Limits to Free Speech

Jonathan Hayoun explained why the UEJF acted to have the tweets removed, stating that, while the organization is not adopting a mission to clean up the web, Twitter cannot place itself outside of the law, adding that “[m]ass dissemination of racist and anti-Semitic speech on the air and on mass media may be the premises of murders.”

Indeed, if racist and anti-Semitic speech may be the "premises of murders," the only advisable solution is to remove them. French and U.S. law are similar on this point, as ‘fighting words’ set a limit for free speech in both legal systems. The difference between the French and the U.S. law, however, is that the U.S. courts would not likely interpret hate speech as necessarily warranting censorship.

Some U.S. jurists have nevertheless been in favor of distinguishing “pure speech,” and “speech plus,” that is speech plus conduct. Justice Jackson wrote in his dissent in Beauharnais v. Illinois, 343 U.S. 250 (1952), that:

“Hitler and his Nazis showed how evil a conspiracy could be which was aimed at destroying a race by exposing it to contempt, derision, and obloquy. I would be willing to concede that such conduct directed at a race or group in this country could be made an indictable offense. For such a project would be more than the exercise of free speech. Like picketing, it would be free speech plus.” (Beauharnais at 284)

Justice Jackson served as Chief U.S. Prosecutor at the Nuremberg Trial. The UEJF also has an association with World War Two, with a distinguished origin in 1944 when it was created by Jewish students active in the French Résistance. France is also a party at the European Convention of Human Rights (ECHR), which was adopted in 1950 partly as a response to the horrors of World War Two in Europe. ECHR's article 10, § 2, states that freedom of speech “may be subject to…formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.”

The threshold allowing States to limit free speech in the interest of a democratic society may nevertheless be difficult to measure. In 2006, the European Court of Human Rights unanimously held in Giniewski v. France that France had violated article 10 of the ECHR, in a case where the applicant had been sentenced in France under article 32, § 2, of the French Press Law. In the underlying case, the applicant had been sentenced following the publication in a French newspaper of his article arguing that some principles of the Catholic religion had led to anti-Semitism and had promoted the Holocaust.

French Law Incriminates Incitation to Discrimination

The French law also differs from the U.S. law as it also incriminates incitement to discrimination, not only incitement to violence. Article 24 of the French Press Law distinguishes incitement to violence and incitement to discrimination, but both are punishable by one year in prison and or a € 45,000 fine.

It can be argued that some of the tweets, while reflecting the racism, anti-Semitism, and abysmal stupidity of their authors, nevertheless do not incite violence. However, they may incite discrimination by making this type of speech generally acceptable in society.

Therefore, the tweets may be considered defamatory under French law, and the French court may ask Twitter to take them down. Twitter is a U.S. company. What is the weight of French law then?

The Responsibility of Twitter under French Law

Twitter states on its site it is a communications platform, not a content provider, and, according to Twitter’s Media Policy, it “[does] not mediate content, whether that content is an image or text; however, some content is not permissible by law.” 

Since the enactment of the French Law for Trust in the Digital Economy (the "Loi pour la Confiance dans l’Économie Numérique," or "LCEN") on June 21, 2004, defamation by electronic communication is also within the scope of the French Press Law. Such defamation is punishable by a € 45,000 fine or a one-year prison term, or both.

Article 6.I.2. of the LCEN provides a safe harbor for service providers of public communications services. Such services cannot be held civilly or criminally liable for an illegal speech they store if, after having been informed that the speech is illegal, they act promptly to remove the data or make access to it impossible.

Twitter introduced a “country-withheld content” policy last January, stating that:
“[m]any countries, including the United States, have laws that may apply to Tweets and/or Twitter account content. In our continuing effort to make our services available to users everywhere, if we receive a valid and properly scoped request from an authorized entity, it may be necessary to reactively withhold access to certain content in a particular country from time to time.”

Following an official demand made by the Hannover police, Twitter implemented this new policy for the first time on October 17, when it blocked users in Germany to access the account of a German neo-Nazi group based in Hannover, which had been banned  by the Lower-Saxony Ministry of the Interior. The account remains available to users located in other countries. 

Twitter ultimately chose to delete the tweets at stake in France. What would have happened if it would not have done so, and if the  UEJF had obtained from a French Court a decision requiring Twitter to delete them? One remembers that in 2000, the UEJF had obtained from a French Court to order Yahoo! to block access in France to its auction site, as it was selling Nazi paraphernalia, thus contravening a French law forbidding such objects to be displayed. At the time Yahoo! argued that being required to block access only in France would be too costly for the company.

Technology has evolved since 2000, and Alexander Macgillivray, Twitter’s chief lawyer, tweeted about the blocked access in Germany:  “Never want to withhold content; good to have tools to do it narrowly & transparently.”

From the U.S. law point of view, both hate speech and its censorship have to be transparent. From the French law point of view, censorship has to be transparent, but hate speech suppressed. Both countries need beacons of guidance, and in this case, both the stance of the UEJF, fighting against mainstream racism, and of Twitter, fighting for the unfettered right to free speech, have to be commended.

UPDATE: October 31, 2012

On October 23, the UEJF and J'accuse! Action internationale pour la justice (AIPJ), a non-profit organization whose goal is to fight racism, sent a cease-and-desist letter to Twitter, asking it formally to promptly remove, or to render inaccessible, tweets bearing the hashtag #unjuifmort ("a dead Jew").

This letter purported to put Twitter on notice that these tweets were "manifestly unlawful" under French law, and thus stripped Twitter from the Safe Harbor provisions of the LCEN. Article 6.I.5 of the LCEN provides that knowledge of disputed facts by ISPs and hosting providers are assumed after having been notified by such a letter. Under French law, Twitter should now remove "promptly" the illegal content.

If it does not do so, as stated in the letter, the UEJF and the AIPJ plan to asking a French Court, acting in emergency, to prescribe Twitter to take all measures to prevent or to stop damage caused by the content of these communications.

Is the content indeed illegal? The letter quotes article 6.I.7 of the LCEN, which states that, because of "the general interest attached to the repression of apology for crimes against humanity, incitement to racial hatred ..., incitement to violence, including incitement to ... violations of human dignity, the [ISPs and the hosting providers] must contribute to the fight against the spread of [these]offenses." Article 6.I.7 goes on by quoting article 24, § 5 of the French Press Law (incriminating promoting or justifying crimes against humanity), article 24, § 8 of the same law (incriminating incitement to violence and to discrimination), and article 227-24 of the criminal Code (incriminating distributing by any means whatsoever, and regardless of the medium, a violent message likely to cause serious harm to human dignity).

Even if the content could be found illegal under French law, one can regret that the letter only gave 24 hours to Twitter to react before the UEJF and the AIPJ would go to court, or, as stated by the letter, regain their freedom of action. Twenty-four hours is quite a short period to assess if content is indeed illegal, especially when one takes into account the 9-hour time difference between Paris and California, where Twitter is located.

Balancing freedom of speech and eliminating racial discrimination is a difficult exercise, and allowing a little bit more time would have been profitable to both parties.

French courts have acknowledged in the past that it may be a delicate matter for a hosting provider to assess whether content is illicit or not. For instance, the Paris District Court held in 2004, only a few months after the enactment of the LCEN, that a hosting provider was not a fault for having failed to remove content from a blog denying the existence of the Armenian Holocaust, as denying it was not a crime under article 24 of the French Press Law.

Rushing to delete speech is certainly not in the interest of freedom of speech, but it may not be in the interest of organizations fighting racism either. Hate speech needs to be balanced by thoughtful responses, and that needs time, unless hate speech creates an immediate danger to indiviudals. This did not seem to be the case in this instance, so let's hope for some continued time and effort to think it over.

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law.

(Image courtesy of Flickr user Rosaura Ochoa pursuant to Creative Commons CC BY 2.0 license)