Back to Index of Limits on Freedom of Expression

Freedom of speech is considered an “essential freedom” in France.  It is protected by the 1789 Declaration of Human and Civic Rights, which is incorporated by reference into the French Constitution.  It is also protected by the European Convention on Human Rights, to which France is a party.  Yet, while French law considers free speech to be an essential component of a democratic society, it is not seen as absolute.  French legislators, and French courts, seek to balance freedom of speech with other imperatives, such as other freedoms and rights, and public order.  Thus, freedom of expression may be limited for the sake of protecting privacy, protecting the presumption of innocence, and preventing defamation and insults.  Freedom of expression may also be limited for the sake of protecting public order.  It is therefore illegal to incite others to commit a crime, even when no crime ends up being actually committed.  French law also prohibits hate speech, and speech denying or justifying the Holocaust and other crimes against humanity.  Additionally, French law prohibits defamation against government institutions and office-holders, as well as disrespecting the national anthem and flag in the context of public events organized or regulated by public authorities. 

Television and radio broadcasting used to be state monopolies, but were liberalized in the 1980s.  Freedom of broadcasting is the main legal principle for television and radio.  Nevertheless, broadcasters must abide by laws that protect and promote human dignity, freedom, the property of others, pluralism of views and opinions, children and adolescents, public order, and national defense. Furthermore, broadcasters that rely on radio waves must be authorized by the Conseil supérieur de l’audiovisuel (CSA) (Superior Council on Audiovisual) to use specific bandwidths.  The CSA attributes bandwidths on the basis of technical criteria and also with the goal of promoting the public interest and pluralism.  Additionally, the CSA monitors broadcasts to ensure respect for French laws.  The CSA does not censure broadcasts beforehand, but may sanction broadcasters engaging in illegal speech after the fact.  First offenses lead to an order to cease and desist, but subsequent offenses may lead to fines and even the suspension or withdrawal of broadcasting authorizations.  Recent legislation also allows the CSA to withdraw the broadcasting authorization of an operator controlled by a foreign state if it broadcasts content that harms a fundamental national interest of France.  This legislation specifically mentions the dissemination of false information to interfere with the proper functioning of institutions as an example of a broadcast harmful to a fundamental national interest.

I. Freedom of Speech

A. An Essential Freedom

Freedom of expression is considered an “essential freedom” in France.[1]  It is protected by the French Constitution, which incorporates the Declaration of Human and Civic Rights of 1789.[2]  Articles 10 and 11 of the Declaration protect freedoms of opinion and expression, describing the “free communication of ideas and of opinions” as “one of the most precious rights of man.”[3]  Similarly, the European Convention on Human Rights, by which France is bound, provides that “[e]veryone has the right to freedom of expression,” including “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”[4] 

Consequently, courts have repeatedly recognized freedom of speech as a foundational right.  The Constitutional Council, which judges the constitutionality of French legislation, considers that “the freedom of expression and of communication is that much more precious because its exercise is a condition of democracy and among the guarantees that other rights and freedoms will be respected.”[5]  Consequently, the right to free speech should apply broadly.  The European Court of Human Rights declared that freedom of speech “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.”[6]

B. Freedom of Speech Is Not Absolute

Despite its foundational importance, freedom of speech was never intended to be absolute.  In contrast to the First Amendment of the United States Constitution, the 1789 Declaration of Human and Civic Rights provided limits to freedom of expression in its very definition.  Article 10 declares that “[n]o one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.”[7]  Article 11 provides that “[a]ny citizen may therefore speak, write and publish freely, except what is tantamount to the abuse of this liberty in the cases determined by Law.”[8]  Similarly, the European Convention on Human Rights declares that 

[t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed 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 impartiality of the judiciary.[9]

Thus, French law seeks to balance freedom of speech with other imperatives, as shown by extensive jurisprudence on this topic.  The Cour de cassation, France’s highest court for civil and criminal matters, established the general principle that “restrictions to freedom of expression should be interpreted narrowly.”[10]   They must also be proportional to the expected harm, as shown by a 1933 decision by the Council of State, which is the highest French jurisdiction for matters of administrative law.  In that case, the mayor of the City of Nevers prohibited the plaintiff from holding a public meeting, in response to protests from teachers’ unions (the plaintiff had a history of mocking teachers in his speeches).[11]  The Council of State struck down the mayor’s order prohibiting the meeting on the grounds that it was disproportional to the risk of public disorder that the meeting presented.[12]  While this decision was, strictly speaking, a freedom of assembly case, its principle of proportionality applies to freedom of expression as well.  For example, it was cited in a 2014 decision in which the Council of State upheld the prohibition of a public performance by controversial comedian Dieudonné M’bala M’bala, because it was justified by the high risk that he would disturb public order by engaging in illegal hate speech.[13]

The balance that French courts seek between freedom of expression and other imperatives is very fact-dependent.  Nonetheless, it appears that proper limits on speech can be separated into two broad categories:  limits related to the rights of others, and limits related to public order.[14]

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II. Limits Related to the Rights of Others

The 1789 Declaration of Human and Civic Rights defines freedom in general as “being able to do anything that does not harm others.”[15]  Consistent with that definition, freedom of speech in France is limited by the right to privacy, the presumption of innocence, the right to “human dignity,” and by rules prohibiting defamation and insult.[16]  

The right to privacy is protected by the Penal Code,[17] the Civil Code,[18] and the European Convention on Human Rights.[19]  Additionally, the Civil Code aims to protect the presumption of innocence of criminal defendants by prohibiting the media from presenting a person who has not yet been convicted of a crime as being guilty of that crime.[20]

Furthermore, the Law of 29 July 1881 on Freedom of the Press, which is still in force (although it has been amended numerous times since its original adoption), prohibits defamation and insults, both written and verbal.  The Law of 29 July 1881 defines “defamation” as “any allegation or imputation of a fact which harms the honor or consideration of the person or group to which the fact is imputed.”[21]  The same provision defines “insult” as “any offensive expression, term of contempt, or invective which does not contain the imputation of any fact.”[22]  The legislators have tried to find a balance between freedom of speech and the prohibitions against defamation and insult.  Thus, speech may not be considered defamation if it can be shown to have been expressed in good faith, or if it is true—although the “exception of truth” is itself limited by the right to privacy, meaning that a true statement may still be considered defaming if it concerns a person’s private life.[23]

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III. Limits Related to Public Order

A. Prohibitions on Inciting Criminal Acts

Speech may be limited to protect the community in general.  Thus, speech that incites the commission of a criminal offense can be prosecuted as complicity in that offense.[24]  Incitation of homicide, physical or sexual assault, theft, extortion, destruction of property, and other intentional degradations that put others in danger is punishable by up to five years in prison and a fine of €45,000 (approximately US$50,500) even if the crime in question was never actually committed.[25]  The same punishment applies to inciting criminal offenses against a fundamental national interest, and defending or justifying slavery, war crimes, or crimes against humanity.[26]  Inciting or justifying acts of terrorism is punishable by up to five years in prison and a fine of €75,000 (approximately US$84,160).[27]  These sanctions are increased to seven years in prison and a fine of €100,000 (approximately US$112,200) if the incitation or justification was done via a public online service.[28]

B. Prohibitions on Hate Speech and Denial of Crimes against Humanity

Similarly, French law prohibits “hate speech,” defined as “inciting discrimination, hatred or violence against a person or group of persons because of their origins or because they belong or do not belong to a certain ethnicity, nation, race or religion,” as well as “inciting hatred or violence against a person or group of persons because of their sex, sexual orientation, gender identity, or disability.”[29]    Hate speech is punishable by up to a year in prison and a fine of €45,000, as is the denial or minimization of recognized crimes against humanity, in particular the Holocaust.[30]  In the case of these prohibitions against hate speech and denial of crimes against humanity, freedom of speech is limited for the sake of protecting human dignity.[31]

C. Limits on Speech against Institutions and Officeholders

Speech may also be limited to protect, to a certain extent, the country’s institutions.  The Law of 29 July 1881 provides that “defamation . . . against the courts, the tribunals, the army, navy or air force, the state bodies and public administrations, shall be punished by a fine of 45,000 Euros).”[32]  The same sanction applies to defamation against government officials in their official capacity, from the President and members of Parliament all the way to local officials.[33]  Jurors and witnesses at trials are also protected by the same provision.[34]  The Law of 29 July 1881 explicitly exempts good-faith reporting of parliamentary or judicial proceedings from prosecution for defamation.[35]  Furthermore, the Cour de cassation has declared that criticism of the manner in which institutions function is a valid exercise of freedom of expression.[36]  Nevertheless, defamation prosecutions do occur, and are often difficult to defend against.[37]

Another limit to free speech that is worth noting is that disrespecting the French national anthem or the French flag, in the context of an event organized or regulated by public authorities (such as a commemorative ceremony or certain sports events), is punishable by a fine of up to €7,500 (approximately US$8,400).[38]  The same act is punishable by a fine of €7,500 and up to six months in jail if it is committed by a group of people.[39]

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IV. Regulation of Radio and Television Broadcasting

A. General Overview

Radio and television broadcasting were a state monopoly from 1945 to 1981.[40]  Private radio stations were allowed in 1981, and a 1982 law established the principle of broadcasting freedom for radio and television.[41]  This 1982 law was repealed in 1986 to be replaced by the Law of 30 September 1986 Regarding Freedom of Communication, often referred to as the Loi Léotard (after the name of the law’s main sponsor, Minister of Culture and Communication François Léotard).[42]  The Loi Léotard, which was amended several times but remains one of the principal texts governing broadcasting in France, retained the general principal of freedom of audiovisual broadcasting.[43]  In its current wording, the Loi Léotard governs “communication to the public via electronic means,” which it defines as “broadcasts, transmission or reception of signs, signals, written words, images, or sounds, by electromagnetic means,” that do not have the nature of private correspondence.[44]  Freedom of broadcasting

may not be limited except to the extent necessary . . . to protect human dignity, freedom, the property of others, and the pluralistic character of the expression of trends of thought and opinions, . . . the protection of children and adolescents, the preservation of public order, the necessities of national defense, public service requirements, technical constraints inherent to the means of communication, as well as the necessity for audiovisual services to develop audiovisual production.[45]

B. Enforcement

The main regulatory agency for radio and television broadcasting is the Conseil supérieur de l’audiovisuel (CSA) (Superior Council on Audiovisual), an independent agency that was created in a 1989 amendment to the Loi Léotard.[46]

One of the CSA’s missions is to manage the attribution of radio frequencies.[47]  The criteria by which the CSA accepts or denies the applications of private broadcasters include, in addition to technical considerations, the promotion of “the public interest and the respect of pluralism.”[48]  Broadcasters who do not rely on radio waves, such as cable television, are not subject to authorization.[49]  However, the CSA is also tasked with monitoring broadcasters to ensure that they respect French law.[50]  The CSA does not practice censorship prior to broadcasting, but may apply sanctions after broadcasting if a program violates French law.[51]  Applicable sanctions range from an order to cease and desist, to a fine of up to 3% of the broadcaster’s revenue over the previous year, or 5% of the broadcaster’s revenue in the case of recidivism.[52]  The CSA may also suspend or withdraw an authorization to broadcast.[53]  Additionally, the CSA may require operators to broadcast a communiqué, under terms and conditions dictated by the CSA itself, as part of a sanction for illegal speech.[54]

C. Rule Specific to Broadcasters Controlled by Foreign States

In addition to the enforcement authority mentioned above, an amendment to the Loi Léotard adopted in December 2018 specifically addresses the case of media controlled by foreign states.  Article 42-6 provides that the CSA may, after a first warning, withdraw the broadcasting authorization of an operator controlled by or under the influence of a foreign state, if it broadcasts content that harms a fundamental national interest of France.[55]  This provision explicitly states that the propagation of false information to interfere with the proper functioning of institutions should be considered as harmful to a fundamental national interest.[56]  This provision also states that the CSA may, in deciding to withdraw an authorization, consider content that the broadcaster, or its subsidiary or parent organization, published on other communication services, but the CSA may not base its decision entirely on that.[57]

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Prepared by Nicolas Boring
Foreign Law Specialist
June 2019

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Last Updated: 12/30/2020