Decision no. 2016-738 DC of 10 November 2016

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE, on 10 October 2016, under the conditions described in Article 61, second Sub-paragraph of the Constitution, regarding the Law for enhancing freedom, independence and pluralism in the media number 2016-738 DC, by Mr. Bruno RETAILLEAU, Mr. Gérard BAILLY, Mr. Philippe BAS, Mr. Jérôme BIGNON, Mr. François BONHOMME, Mr. Gilbert BOUCHET, Mr. Michel BOUVARD, Mr. François-Noël BUFFET, Mr. François CALVET, Mr. Christian CAMBON, Ms. Agnès CANAYER, Mr. Jean-Pierre CANTEGRIT, Mr. Jean-Noël CARDOUX, Mr. Jean-Claude CARLE, Ms. Caroline CAYEUX, Mr. Patrick CHAIZE, Mr. Pierre CHARON, Mr. Daniel CHASSEING, Mr. Alain CHATILLON, Mr. Gérard CORNU, Mr. Philippe DALLIER, Mr. René DANESI, Mr. Mathieu DARNAUD, Ms. Isabelle DEBRÉ, Mr. Francis DELATTRE, Mr. Robert del PICCHIA, Mr. Gérard DÉRIOT, Ms. Catherine DEROCHE, Ms. Jacky DEROMEDI, Ms. Marie-Hélène DES ESGAULX, Ms. Chantal DESEYNE, Ms. Catherine DI FOLCO, Mr. Éric DOLIGÉ, Mr. Philippe DOMINATI, Ms. Marie-Annick DUCHÊNE, Mr. Alain DUFAUT, Ms. Nicole DURANTON, Mr. Louis DUVERNOIS, Mr. Jean-Paul ÉMORINE, Ms. Dominique ESTROSI SASSONE, Mr. Michel FORISSIER, Mr. Alain FOUCHÉ, Mr. Bernard FOURNIER, Mr. Christophe FRASSA, Mr. Pierre FROGIER, Ms. Joëlle GARRIAUD-MAYLAM, Mr. Jacques GENEST, Mr. Bruno GILLES, Ms. Colette GIUDICELLI, Mr. Alain GOURNAC, Mr. Jean-Pierre GRAND, Mr. Daniel GREMILLET, Mr. François GROSDIDIER, Mr. Jacques GROSPERRIN, Ms. Pascale GRUNY, Mr. Charles GUENÉ, Mr. Michel HOUEL, Mr. Alain HOUPERT, Ms. Christiane HUMMEL, Ms. Corinne IMBERT, Mr. Roger KAROUTCHI, Ms. Fabienne KELLER, Mr. Guy-Dominique KENNEL, Ms. Élisabeth LAMURE, Mr. Daniel LAURENT, Mr. Antoine LEFÈVRE, Mr. Jacques LEGENDRE, Mr. Dominique de LEGGE, Mr. Jean-Pierre LELEUX, Mr. Jean-Baptiste LEMOYNE, Mr. Jean-Claude LENOIR, Mr. Gérard LONGUET, Ms. Vivette LOPEZ, Mr. Michel MAGRAS, Mr. Didier MANDELLI, Mr. Jean-François MAYET, Ms. Colette MÉLOT, Ms. Marie MERCIER, Ms. Brigitte MICOULEAU, Mr. Alain MILON, Ms. Patricia MORHET-RICHAUD, Mr. Jean-Marie MORISSET, Mr. Philippe MOUILLER, Mr. Louis NÈGRE, Mr. Louis-Jean de NICOLAŸ, Mr. Claude NOUGEIN, Mr. Jean-Jacques PANUNZI, Mr. Philippe PAUL, Mr. Jackie PIERRE, Mr. Rémy POINTEREAU, Mr. Hugues PORTELLI, Ms. Sophie PRIMAS, Mr. Henri de RAINCOURT, Mr. Michel RAISON, Mr. Jean-François RAPIN, Mr. André REICHARDT, Mr. Charles REVET, Mr. Bernard SAUGEY, Mr. René-Paul SAVARY, Mr. Bruno SIDO, Mr. André TRILLARD, Ms. Catherine TROENDLÉ, Mr. Michel VASPART, Mr. Hilarion VENDEGOU, Mr. Jean-Pierre VIAL, Mr. Jean-Pierre VOGEL, Ms. Annick BILLON, Mr. Philippe BONNECARRÈRE, Mr. Olivier CADIC, Mr. Bernard DELCROS, Mr. Yves DÉTRAIGNE, Ms. Élisabeth DOINEAU, Mr. Jean-Léonce DUPONT, Ms. Françoise FÉRAT, Mr. Joël GUERRIAU, Mr. Loïc HERVÉ, Ms. Sophie JOISSAINS, Mr. Claude KERN, Ms Anne-Catherine LOISIER and Mr. François ZOCCHETTO, Senators.

Also in attendance on 10 October 2016, Mr. Christian JACOB, Mr. Élie ABOUD, Mr. Yves ALBARELLO, Mr. Olivier AUDIBERT-TROIN, Mr. Patrick BALKANY, Mr. Jean-Pierre BARBIER, Mr. Jacques-Alain BÉNISTI, Mr. Sylvain BERRIOS, Ms. Valérie BOYER, Ms. Marine BRENIER, Mr. Philippe BRIAND, Mr. Guillaume CHEVROLLIER, Mr. Alain CHRÉTIEN, Mr. Dino CINIERI, Mr. Jean-Michel COUVE, Mr. Patrick DEVEDJIAN, Mr. Jean-Pierre DOOR, Mr. David DOUILLET, Ms. Virginie DUBY-MULLER, Mr. Daniel FASQUELLE, Mr. Georges FENECH, Ms. Marie-Louise FORT, Mr. Yves FOULON, Mr. Marc FRANCINA, Mr. Yves FROMION, Mr. Laurent FURST, Mr. Claude de GANAY, Mr. Sauveur GANDOLFI-SCHEIT, Mr. Guy GEOFFROY, Mr. Alain GEST, Mr. Philippe GOUJON, Ms. Arlette GROSSKOST, Mr. Serge GROUARD, Mr. Jean-Claude GUIBAL, Mr. Jean-Jacques GUILLET, Mr. Michel HEINRICH, Mr. Michel HERBILLON, Mr. Patrick HETZEL, Mr. Philippe HOUILLON, Mr. Christian KERT, Mr. Jacques KOSSOWSKI, Ms. Laure de LA RAUDIÈRE, Ms. Isabelle LE CALLENNEC, Mr. Vincent LEDOUX, Mr. Céleste LETT, Mr. Lionnel LUCA, Mr. Olivier MARLEIX, Mr. Patrice MARTIN-LALANDE, Mr. Jean-Claude MATHIS, Mr. Gérard MENUEL, Mr. Damien MESLOT, Mr. Jean-Claude MIGNON, Mr. Pierre MOREL-A-L'HUISSIER, Mr. Dominique NACHURY, Ms. Stéphanie PERNOD BEAUDON, Mr. Bernard PERRUT, Ms. Josette PONS, Mr. Frédéric REISS, Mr. Franck RIESTER, Mr. Martial SADDIER, Mr. Paul SALEN, Mr. François SCELLIER, Mr. André SCHNEIDER, Mr. Fernand SIRÉ, Mr. Michel SORDI, Mr. Éric STRAUMANN, Mr. Michel TERROT, Mr. Jean-Marie TÉTART, Mr. Arnaud VIALA, Mr. Philippe VITEL and Mr. Rudy SALLES, Members of the National Assembly.

In light of the following texts and items:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 as amended, concerning the Basic Law on the Constitutional Council;
• the Criminal Code;
• the Code of Criminal Procedure;
• the Code on Intellectual Property;
• the Law of 29 July 1881 on the freedom of the press;
• Law no. 86-1067 of 30 September 1986 on freedom of communication;
• the observations of the Government, registered on 19 October 2016;

And having heard the rapporteur;

THE CONSTITUTIONAL COUNCIL CONCLUDES AS FOLLOWS:

1. The applicant representatives and senators defer to the Constitutional Council regarding the Law for enhancing freedom, independence and pluralism in the media. The applicant senators contest Article 4. The applicant representatives contest Article 1 and certain provisions of Article 6.

• On Article 1:

2. Article 1 of the Law in question inserts an Article 2 bis to the Law of 29 July 1881 mentioned hereinabove. The first Sub-paragraph of Article 2 bis entitles journalists to an opposition right that allows them, on the one hand, pursuant to the first sentence of this Sub-paragraph, to refuse all pressure, to refuse to divulge their sources and to refuse to sign an article, a contribution or a broadcast, the form or content of which has been modified without their knowledge or against their will. On the other hand, this opposition right is an impediment, pursuant to the second sentence of this same Sub-paragraph, in that journalists can be obliged to accept an action that goes against their professional conviction in regard to the ethical charter of their company or publishing firm. The second Sub-paragraph of this Article lays out that the employment contract entered into between the journalist and the company that employs him or her requires adherence to the ethical charter of this company. The third Sub-paragraph, which lays out the methods for negotiating and entering into these charters, states that in their absence, the professional declarations and practices of the journalist profession can be invoked in the case of a dispute.

3. The applicant representatives maintain that, given the imprecision of the notion of professional conviction that is the basis of the opposition right given to journalists, the legislature violated the extent of its competence. They also contest that the opposition right bears on the principle of responsibility contained in Article 4 of the 1789 Declaration of the Rights of Man and the Citizen, insofar as the manager of the publication, legally responsible for the content published, through this opposition right being exercised, may be deprived of the possibility to refuse the publication or the release of a text or a broadcast or the possibility to rectify them.

. With regard to the claim of the violation of the principle of responsibility:

4. Pursuant to Article 4 of the 1789 Declaration: "Liberty consists in being able to do anything that does not harm another". In principle, it follows from these provisions that anyone who does harm to another must make reparations for it. The ability to act responsibly applies to this constitutional requirement.

5. By establishing the opposition right set out in the second sentence of the first Sub-paragraph of the new Article 2 bis, the legislature is required to allow a journalist, requested by his or her employer to perform an action, to refuse to do so if it goes against their professional conviction in regard to the ethical charter of their company or publishing firm. The opposition right, consequently, prohibits the manager of the publication to publish or broadcast, without the signature of the party in question and after rectification, the article or broadcast he or she worked on, to refuse its publication or broadcast. The responsibility of the manager of the publication consequently is only applicable to the content of texts, contributions or broadcasts that he or she accepts to publish or broadcast after rectification. Thus, the claim of the violation of the principle of responsibility is insufficient.

. With regard to the claim of incompetence:

6. According to Article 34 of the Constitution, the law sets the rules regarding fundamental guarantees granted to the citizen to exercise public freedoms and those regarding employment law. It determines the fundamental principles of civil and commercial obligations. It falls on the legislature to fully exercise the competence granted to it under the Constitution, specifically Article 34.

7. In referring to the "professional conviction in regard to the ethical charter" of the organization that employs the journalist, the legislature has defined the criteria by which the journalist may refuse to perform an action requested by his or her employer. This criteria refers to the requirements and practices of the journalist profession, referred to by this ethical charter, to which the individual has sworn. This criteria is not ambiguous. It is the responsibility of the judge, asked to decide on a dispute about this refusal, to evaluate if the situation corresponds to the criteria upheld by the legislature. The legislature has sufficiently determined the conditions for the opposition right. Consequently, the claim of incompetence must be set aside.

8. The provisions of Article 1, which do not violate any other constitutional requirement, are thus constitutional.

• On Article 4:

9. Article 4 relates to the protection of journalists' sources.

10. Paragraph I of Article 4 rewrites Article 2 of the Law of 29 July 1881. Paragraph I of this Article 2, as rewritten, states that confidentiality of sources shall be protected and that this protection covers any person who, in the exercise of the profession of journalist for companies or press agencies or companies for communication to the public, on line or audio-visually, practises the gathering of information and its distribution to the public. This protection also covers any person performing the duties of managing publication or reporting in these same companies or agencies as well as any associate of this reporting. Paragraph II of this same Article 2, which defines the notion of direct or indirect infringement upon the right to confidentiality of sources, stating that such infringement may only be carried out in exceptional situations and only to prevent and respond to crimes and certain offences. Paragraph III states that this infringement on the right to confidentiality of sources may only be carried out in regard to a criminal proceeding authorized by a judge. Paragraph IV establishes criminal immunity for the persons mentioned in Paragraph I in the case of documents, images or recordings seized from the violation of professional confidentiality or violation of confidentiality regarding the investigation or the examination or violation of privacy when these contain information for which their distribution to the public has a legitimate purpose for a democratic society.

11. Paragraph II of Article 4 of the Law in question includes Volume IV of the Code of Criminal Procedure in Title XXXIV dedicated to the protection of confidentiality of sources including Articles 706-183 to 706-187. Article 706-183 lays out that the right to confidentiality of sources may only be infringed upon during a criminal proceeding and only under the conditions and according to the methods set out in this new Title XXXIV. Article 706-184 establishes that journalists, those managing publication or reporting and any associate of this reporting, when there is a police investigation or inquiry or before a jurisdiction, are free to not reveal the sources of the information gathered while performing their activity and that they must be informed of their right to not be required to reveal their sources. Article 706-185, on the one hand states that no investigation or inquiry may have the goal of infringing on the right of confidentiality of sources, subject to the same exceptions as those established in Paragraph II of Article 2 of the Law of 29 July 1881. And on the other hand, that any inquiry that infringes on the right to confidentiality of sources must be approved by the liberties and detention judge beforehand. Article 706-186 states that, when there is infringement on the right to confidentiality of sources, the searches described in Article 56-2 of the Code of Criminal Procedure must be approved by this same judge beforehand. Finally, Article 706-187 forbids keeping, when there is infringement on the right to confidentiality of sources, any file from the proceedings containing documents, images or audio or video recordings seized during the search or following a requisition, as well as the transcript of the intercepted correspondence.

12. Sections number 1 to 4, 8 and 9 of Paragraph III of Article 4 of the Law in question makes the infringement on the right of confidentiality of sources an aggravated circumstance of several infractions, leading to an increase in the fine incurred. Sections number 5 to 7 of the same Paragraph strengthens the penalties for certain infringements on the right of confidentiality of sources related to national defence and certain services or specialized units, in order to include these infractions within the field of those that can justify an infringement on the confidentiality of sources.

13. The applicant senators firstly maintain that this Article 4 was introduced through an amendment by a procedure that is unconstitutional.

14. Secondly, they submit that by forbidding a direct or indirect infringement on the confidentiality of sources during a criminal procedure, under the claim of preventing and responding to crimes having a certain gravity, Article 4 manifestly disproportionately infringes on the prevention of harm to public order and the search for perpetrators causing the infractions as well as safeguarding the fundamental interests of the Nation. Furthermore, the criminal immunity established by this Article violates, due to its scope, the right of respect for private life, the inviolability of the home, the confidentiality of correspondence and the principle of equality. These provisions should also be attached to incompetence where this immunity applies to associates to this reporting, a notion that is not precisely defined. Finally, they are contrary to the objective of constitutionality regarding accessibility and intelligibility of the law in that having "a legitimate purpose for a democratic society" is imprecise.

15. The applicant senators also maintain that by submitting any action of investigation or inquiry related to infringing on the confidentiality of sources to prior authorization of the liberties and detention judge, the Articles 706-185 and 706-186 of the Code of Criminal Procedure establishes different treatment, contrary to the principle of equality in criminal procedures.

16. Finally, the applicant senators maintain that the Sections number 1 to 4, 8 and 9 of Paragraph III of Article 4 of the Law in question making the infringement on the right of confidentiality of sources an aggravated circumstance of several infractions, violates the principles of legality regarding crimes and penalties and the "clarity and precision of criminal law". These provisions are also attached to incompetence.

17. Pursuant to Article 11 of the 1789 Declaration: "The free communication of thoughts and opinions is one of the most precious rights of humanity: every citizen should speak, write, and print freely, except in regard to the abuse of this liberty in the cases determined by the law". Liberty of expression and communication is all the more precious in that the exercise thereof is a condition of democracy and one of the guarantees that other rights and freedoms are respected. Furthermore, no constitutional provision specifically applies to journalists' rights of confidentiality of sources.

18. According to Article 2 of the 1789 Declaration: "The aim of any political association is the preservation of the natural and imprescriptible rights of man. These rights are freedom, property, security, and resistance to oppression”. The freedom proclaimed by this article implies the right to privacy and the confidentiality of correspondence. In order to be constitutional, limits placed on this right must be justified by a reason of general interest and implemented adequately and proportionately to that objective.

19. It follows from Articles 5, 20 and 21 of the Constitution that the confidentiality of national defence is the safeguard of the fundamental interests of the Nation, among them independence of the Nation and the integrity of national territory.

20. It is incumbent upon the legislature to ensure a balance between, on the one hand, liberty of expression and communication, and on the other, the right of respect for private life, the confidentiality of correspondence, the safeguard of the fundamental interests of the Nation, the search for perpetrators and the prevention of attacks on public order necessary to safeguard the rights and principles of the constitution.

21. First of all, the legislature states that it may infringe on the confidentiality of sources to punish certain crimes sanctioning violence to persons or acts of terrorism threatening the fundamental interests of the Nation. However, this infringement remains under the condition that it is justified to stop a crime or by the existence of a particularly elevated risk. Thus, the legislature, in regard to tort or delict, has rendered the infringement of the confidentiality of sources subordinate to the requirements for prevention. Also, it excluded the infringement of this confidentiality of sources to responses to a crime, of whatever gravity, the circumstances of its commission, the interests protected or the preponderant imperative to the public interest related to this response.

22. Secondly, the criminal immunity instituted by these contested provisions benefits all of the persons mentioned in Paragraph I of Article 4, including associates in the reporting. However, these associates are defined as persons who, in the exercise of their reporting for companies or press agencies or companies for communication to the public, online or audiovisually, acknowledge information leading them to discover a source through the collection, editing or producing or broadcasting of this same information. This immunity protects persons whose profession is not indirectly related to the distribution of information to the public. Furthermore, it prohibits prosecution for concealing a violation of professional confidentially and for attacks on the intimacy of private life, crimes punishable by five years of imprisonment and seeking to punish behaviour infringing on the right of respect for private live and confidentiality of correspondence. Also, it prohibits prosecution for concealing a violation of confidentiality regarding the investigation and inquiry, a crime punishable by the same penalty and the presumption of innocence and the search for the perpetrators.

23. It follows from the foregoing that, further to the provisions of Article 4, the legislature has not achieved a balanced harmonisation between, on the one hand, liberty of expression and communication, and on the other, the right to respect for private life and the confidentiality of correspondence. Nor has it achieved a balanced harmonisation between this same liberty and the requirements inherent in the safeguard of the fundamental interests of the Nation, the search for perpetrators and the prevention of attacks on public order necessary to safeguard the rights and principles of the constitution. Without giving judgements on other complaints, Article 4 is thus unconstitutional. The same is true, as a consequence, for Reference "4" in Paragraph I of Article 30.

• On certain provisions of Article 6:

24. Section number 1 of Article 6 included in Article 3-1 of the Law of 30 September 1986 mentioned hereinabove, a Sub-paragraph specifying, on the one hand, that the Conseil supérieur de l'audiovisuel [the audiovisual council] guarantees honesty, independence and pluralism in its information and programs and, on the other, regarding this, that it ensures that the agreements entered into pursuant to this Law with editors of television and radio services guarantee respect for Article 2 bis of the Law of 29 July 1881.

25. The applicant representatives maintain that the legislature has violated the extent of its competence in allowing the Conseil supérieur de l'audiovisuel the responsibility to determine, on the one hand the methods for ensuring the guarantee of honesty, independence and pluralism in its information and, on the other, the content of the agreements entered into with editors of television and radio services.

26. According to Article 34 of the Constitution, "the law sets the rules concerning ... the pluralism and independence of the media". It falls on the legislature to fully exercise the competence granted to it under the Constitution, specifically Article 34.

27. Firstly, given Section number 1 of Article 19 on the Law of 30 September 1986, the Conseil supérieur de l'audiovisuel may, to accomplish its mission, gather from the editors of audiovisual communication services, all the information necessary to ensure the obligations required of them are respected. Regarding Section number 2 of this Article, it may, for the same reason, undertake inquiries from these editors. Also, the legislature has defined the Conseil supérieur de l'audiovisuel's methods for overseeing the guarantee for honesty, independence and pluralism in its information and programs.

28. Secondly, Article 28 of the Law of 30 September 1986 determines, with regard to honesty, independence and pluralism in its information and programs, the content of agreements entered into between the Conseil supérieur de l'audiovisuel and editors of audiovisual communication services. Additionally, the legislature has defined the content of agreements reached between the Conseil supérieur de l'audiovisuel and editors of audiovisual communication services.

29. The complaint regarding the violation of the legislature regarding the extent of its competence is insufficient. The provisions of Section number 1 of Article 6, which do not violate any other constitutional requirement, are constitutional.

• On the place of other provisions of the Law in question:

30. According to the last sentence of the first Sub-paragraph of Article 45 of the Constitution: "Without prejudice to the application of Articles 40 and 41, all amendments which have a link, even an indirect one, with the text that was tabled or transmitted, shall be admissible on first reading".

31. Article 27 of the Law in question modifies the competences of the commission of journalist copyright law, established in Article L. 132-44 of the Code of Intellectual Property, in regard to the validation of the collective employment agreements. Introduced on first reading of the Senate, these provisions do not have a link, even an indirect one, with those that are in the proposition of the Law in question in the National Assembly. Adopted according to an unconstitutional procedure, they are thus unconstitutional.

• On other provisions:

32. The Constitutional Council raises no other issues regarding conformity with the Constitution and has no judgement on the constitutionality of any provision other than those brought up in this decision.

THE CONSTITUTIONAL COUNCIL RULES:

Article 1. - The following provisions regarding the Law for enhancing freedom, independence and pluralism in the media are unconstitutional:

• Article 4;
• Article 27;
• the Reference "4" in Paragraph I of Article 30.

Article 2. - The following provisions of the same Law are constitutional:

• Article 1;
• Section number 1 of Article 6;

Article 3. - This decision shall be published in the Journal Officiel of the French Republic.

Deliberated by the Constitutional Council in its session of 10 November 2016, in attendance: Mr. Laurent FABIUS, President, Ms. Claire BAZY MALAURIE, Ms. Nicole BELLOUBET, Mr. Michel CHARASSE, Mr. Valéry GISCARD d'ESTAING, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Corinne LUQUIENS and Mr. Michel PINAULT.

Announced on 10 November 2016.