Decision no. 2011-164 QPC of 16 September 2011

On 27 June 2011 the Constitutional Council, pursuant to Article -6-1 of the Constitution, received an application for a priority preliminary ruling on the issue of constitutionality from the Cour de Cassation (criminal chamber, order no. 3877 of 21 June 2011) raised by Mr Antoine J., regarding the compatibility of Article 93−3 of Law no. 82−652 of 29 July 1982 on audiovisual communication with the rights and freedoms guaranteed by the Constitution.

THE CONSTITUTIONAL COUNCIL,

Having regard to the Constitution;

Having regard to Ordinance no. 58−1067 of 7 November 1958 as amended, concerning organic law on the Constitutional Council;

Having regard to the Criminal Code;

Having regard to the Law of 29 July 1881 as amended on the freedom of the press;

Having regard to Law no. 82−652 of 29 July 1982 as amended on audiovisual communication;

Having regard to judgments no. 09−81064 and no. 08−86301 of 16 February 2010 of the criminal division of the Cour de Cassation;

Having regard to the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council with respect to applications for priority preliminary rulings on the issue of constitutionality;

Having regard to the observations filed on behalf of the applicant by SCP Lyon−Caen et Thiriez, Attorneys to the Conseil d'État and the Cour de Cassation, registered on 19 July 2011;

Having regard to the observations of the Prime Minister, registered on 19 July 2011;

Having regard to the observations filed on behalf of the company Distribution Casino France by the SCP B. Piwnica and L. Molinié, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 2 August 2011;

Having regard to the documents produced and appended to the case files;

Having heard Esq. Thomas Lyon−Caen for the applicant, Esq. Emmanuel Piwnica for the company Distribution Casino France and Mr. Xavier Pottier, appointed by the Prime Minister, at the public hearing of 6 September 2011;

Having heard the Rapporteur;

1. Considering that pursuant to Article 93−3 of the Law of 29 July 1982 on audiovisual communication: "If any of the offences provided for under Chapter IV of the Law of 29 July 1881 on the freedom of the press is committed by a public electronic means of communication, the editor of the publication or, in the cases provided for under the second subparagraph of Article 93−2 of this Law, the co-editor of the publication shall be prosecuted as the principal author if the incriminating message was the object of prior control before it was communicated to the public.

"In his absence the author or, in the absence of the author, the producer shall be prosecuted as the principal author.

"If the editor or the co-editor of the publication is called to account, the author shall be prosecuted as an accomplice.

"Any person to whom Article 121-7 of the Criminal Code applies may also be prosecuted as an accomplice.

"If the offence is committed by virtue of the contents of a message addressed by an internet user to a public online communication service that is made available to the public by this service within a space dedicated to personal contributions which is identified as such, the editor or co-editor of the publication shall not incur criminal responsibility as the principal author if it is established that he was not actually aware of the message before it was posted online, or if he promptly took action to withdraw this message as soon as he became aware of it";

2. Considering that, according to the applicant, on the one hand the combined provisions of the second and last subparagraphs of Article 93-3 have the effect of creating a presumption of guilt for the producer of a public online communication service by providing that he is automatically responsible for the content of the messages disclosed within a space for personal contributions of which he is the "inspiration", even if he is not aware of their content; that on the other hand, they violate the principle of equality before the criminal law by treating the editor of the publication and the producer on the internet differently without any justification;

3. Considering that pursuant to Article 9 of the 1789 Declaration of the Rights of Man and the Citizen, all persons are to be presumed innocent until proven guilty; that it follows that Parliament may not in principle establish a presumption of guilt in criminal law matters; that such presumptions may nevertheless be established on an exceptional basis, in particular in relation to minor offences, provided that they are not irrebuttable, that the respect for the rights of the defence is assured and that under the circumstances it is reasonable to conclude that the accused is likely to be guilty; that moreover, in relation to offences and misdemeanours, guilt cannot be established solely from the material imputability of the acts punished under the criminal law;

4. Considering that the contested provisions specify the persons who are criminally responsible for the offences provided for under Chapter IV of the aforementioned Law of 29 July 1881 that are committed through a public online means of communication; that the editor of the publication or, depending on the circumstances, the co-editor of the publication, may only be prosecuted if the incriminating message was subject to review before it was communicated to the public online; that the last subparagraph of the aforementioned Article 93-3 also provides that, under certain circumstances, if the offence was committed by virtue of the contents of a message addressed by an internet user to a public online communication service, the criminal responsibility of the editor or co-editor of the publication will only be engaged if he was aware of the message before it was posted online or if he promptly took action to withdraw this message as soon as he became aware of it; that alternatively, if neither the editor of the publication nor the author are prosecuted, the producer shall be prosecuted as the principal author;

5. Considering that it follows from these provisions, as interpreted by the Cour de Cassation in its aforementioned judgments of 16 February 2010, that the person who took the initiative to create a public online communication service in order to exchange opinions regarding issues that are determined in advance may be prosecuted in his capacity as producer; that this person may not bring the defence that the messages posted online were not subject to prior control or that the author of the messages is not identified;

6. Considering that it accordingly results from the provisions referred that the creator of or inspiration behind such a public online communication website may incur criminal responsibility in his capacity as producer by virtue of the content of messages of which he is not the author and which have not been subject to any prior control; that he cannot avoid the application of the criminal penalties to which he is liable by naming the author of the message or by demonstrating that the editor of the publication incurred criminal responsibility; that this responsibility exposes the producer to penalties that deprive him of rights or limit their availbility and impinges upon the exercise of the freedom of expression and communication protected under Article 11 of the 1789 Declaration;

7. Considering, accordingly, that taking account on the one hand of the regime of specific responsibility applicable to the editor of the publication pursuant to the first and second subparagraphs of Article 93-3 and, on the other hand, the characteristics of the internet which, under the current state of rules and techniques, permit the author of a message broadcast over the internet to remain anonymous, the contested provisions cannot be interpreted as permitting the creator of or inspiration behind a public online communication website that makes messages posted by internet users available to the public to incur criminal responsibility in his capacity as producer by virtue solely of the content of a message of which he was not aware before it was posted online, without establishing an irrebuttable presumption of criminal responsibility in breach of the aforementioned constitutional requirements; that, subject to this reservation, the contested provisions do not violate Article 9 of the 1789 Declaration;

8. Considering that Article 93-3 of the aforementioned Law of 29 July 1982 does not violate any other right or freedom which the Constitution guarantees,

HELD:

Article 1.- Subject to the reservation contained in recital 7, Article 93-3 of Law no. 82-652 of 29 July 1982 as amended on audiovisual communication is constitutional.

Article 2.- This decision shall be published in the Journal Officiel of the French Republic and notified in the conditions provided for under Article 23 -11 of the Ordinance of 7 November 1958 referred to hereinabove.

Deliberated by the Constitutional Council in its session on 15 September 2011, sat on by: Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel CHARASSE, Mr. Renaud DENOIX de SAINT MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr. Hubert HAENEL and Mr. Pierre STEINMETZ.

Announced on 16 September 2011.