Decision no. 2017-682 QPC of 15 December 2017

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE UPON a priority matter of constitutionality on 9 October 2017 by the Cour de Cassation (Criminal Division, Decision no. 2518 of 4 October 2017), under the conditions set out in Article 61-1 of the Constitution. This matter was put forth for Mr. David P. by Mr. Sami Khankan, Esq., attorney admitted to the Nantes bar. It was registered by the General Secretariat of the Constitutional Council under number 2017-682 QPC. It relates to compliance with the rights and freedoms that the Constitution guarantees under Article 421-2-5-2 of the Criminal Code, in its wording resulting from Law no. 2017-258 of 28 February 2017 on public safety.

Having regard to the following texts:

• the Constitution;
• Ordinance no. 58-1067 of 7 November 1958 concerning the Organic Law on the Constitutional Council;
• the Criminal Code;
• the Code of Criminal Procedure;
• the Internal Security Code;
• Law no. 2004-575 of 21 June 2004 on confidence in the digital economy;
• Law no. 2017-258 of 28 February 2017 on public safety;
• Law no. 2017-1510 of 30 October 2017 reinforcing domestic security and the fight against terrorism;
• Decision no. 2016-611 QPC of the Constitutional Council of 10 February 2017;
• the Regulation of 4 February 2010 on the procedure applicable before the Constitutional Council for priority matters of constitutionality;

Having regard to the following items:

• the observations made on behalf of the applicant by Ms. Claire Waquet, Esq., Attorney to the Conseil d'État and the Cour de Cassation, and Mr. Khankan, Esq., on 31 October 2017 and 15 November 2017;
• the observations presented by the Prime Minister, registered on 31 October 2017;
• the observations from the intervening party on behalf of the association the Ligue des Droits de l'Homme [Human Rights League] by the firm Spinosi et Sureau, Attorneys at the Conseil d'État and the Cour de Cassation, registered on 31 October 2017 and 15 November 2017;
• the observations from the intervening party on behalf of the association La Quadrature du Net [the Squaring of the Net] by Mr. Alexis Fitzjean Ó Cobhthaigh Esq., Attorney admitted to the Paris bar, registered on 31 October 2017;
• the documents produced and attached to the case file;

After having heard Ms. Waquet and Mr. Khankan, Esqs., for the applicant, Mr. Alexis Fitzjean Ó Cobhthaigh, Esq., for the association La Quadrature du Net, and Mr. François Sureau, Esq., attorney at the Conseil d'État and the Cour de cassation, for La Ligue des droits de l'Homme, the intervening parties, and Mr. Philippe Blanc, appointed by the Prime Minister, at the public hearing of 4 December 2017;

And having heard the Rapporteur;

THE CONSTITUTIONAL COUNCIL WAS ASKED TO DECIDE ON THE FOLLOWING:

1. Article 421-2-5-2 of the Criminal Code, as written pursuant to the Law of 28 February 2017, mentioned hereinabove, provides that: "The act of habitually accessing online public communication services without legitimate reasons which either exhibit messages, images or representations that directly encourage the commission of terrorist acts, or praise these acts, when this service has the purpose of showing images or representations of these acts that consist of voluntary harm to life is punishable by two years of imprisonment and a fine of €30,000 when accessing these sites includes a desire to participate in the ideology expressed on this service.
   “What specifically consists of legitimate reasons such as defined in the first Subparagraph is accessing sites during the normal activity of a profession that has the goal of informing the public, being involved in scientific research or carried out as evidence in court or accessing sites that involves reporting the content of this service to the competent public authorities”.

2. The applicant claims that, by adopting once more the crime of habitually accessing terrorist websites, the Constitutional Council banned a previous wording in its Decision of 10 February 2017 mentioned hereinabove, the legislature infringed on the authority of the Constitutional Council's decision as res judicata. The applicant also claims that the contested provisions infringe on the principle that offences and penalties must be defined by law and the objective of the constitutional value of accessibility and comprehensibility of the law due to the imprecise terms used. Additionally, they claim that the freedom of communication is infringed because the penalties incurred for the contested provision are not appropriate, given the legal provisions already in force, nor are they suitable and proportionate. Furthermore, the applicant contests the infringement on the principle of equality before the law that results from, on the one hand, that only accessing unlawful content published on a website is punished, but not identical content published by other means, and on the other, that only certain individuals may legally have access to this content, due to their profession or a legitimate reason. According to the applicant, the contested provisions also infringe on the principle of the necessity of offences and penalties, insofar as they only incriminate accessing websites and not committing acts that would allow the presumption that the individual gave in to what was incited on these sites. Finally, Article 421-2-5-2 of the Criminal Code institutes the presumption of guilt contrary to Article 9 of the Declaration of the Rights of Man and the Citizen of 1789 insofar as it is impossible for the individual in question to show that their intent, by accessing the site, is not to become radicalised. The intervening associations partly make the same claims.

• On the merits:

3. 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 freedom in the cases determined by the law". In the current state of communication methods and with regard to the general development of online public communication services in addition to the importance of these services for participating in democratic life and the expression of ideas and opinions, this right means that one should be able to freely access these services.

4. Pursuant to Article 34 of the Constitution: "Statutes shall determine the rules concerning ... the civil rights and the fundamental guarantees granted to citizens for the exercise of their civil liberties". On this basis, it is up to the legislature to enact rules regarding the objective of the fight against the incitement and encouragement to terrorism in online public communication services that balance the objectives of the constitutional value of safeguarding public order and the prevention of offences with the right to exercise free communication and the freedom to speak, write and print. However, the freedom 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. It follows that infringement on the exercise of this freedom must be appropriate, suitable and in proportion to the objective sought.

5. The contested provisions institute a penalty of two years of imprisonment and a fine of 30,000 euros for habitually accessing online public communication services that defend or induce the commission of terrorist acts, including images or representations of voluntary harm to life. Their purpose is to prevent the indoctrination of individuals who may then commit such acts.

6. Firstly, as the Constitutional Council indicated in its Decision of 10 February 2017, the legislation includes all of the criminal offences other than those established by Article 421-2-5-2 of the Criminal Code and the specific criminal procedural provisions that have the objective of preventing the commission of terrorist acts.

7. Thus, Article 421-2-1 of the Criminal Code punishes the fact of participating in a group formed for or having an established agreement to prepare, as characterised by one or more material facts, an act of terrorism. Article 421-2-4 of this same Code punishes the act of offering or promising something to an individual, offering any kind of gift, present or advantage whatsoever, threatening or exerting pressure on this individual with the aim of inciting them to participate in a group or agreement described in Article 421-2-1 or to commit a terrorist act. Article 421-2-5 punishes the act of directly inciting terrorist acts or publicly defending these acts. Finally, Article 421-2-6 punishes the act of preparing to commit a terrorist act when this preparation is intentionally in relation to an individual enterprise that has the goal of gravely disturbing the public order by intimidation or terror and that is characterised by the fact of possessing, obtaining or making objects or substances that create a danger to others as well as other acts such as habitually accessing one or several online public communication services that directly incite the commission of terrorist acts or defend them.

8. Within the framework of the investigation procedures relating to these offences, the magistrates and investigators possess broad powers to undertake interception measures for correspondences issued by electronic communication, gathering technical data on connections, sound recording, the attachment of images and data capture. Furthermore, except for the actions punishable under Article 421-2-5 of the Criminal Code, the specific procedural provisions relating to detentions and searches shall be applicable.

9. Additionally, the legislature has also invested the administrative authority with many powers to prevent the commission of terrorist acts.

10. Also, pursuant to Section 4° of Article L. 811-3 of the Internal Security Code, specialised intelligence services may resort to the techniques mentioned in Title V of Book VIII of the same Code to collect information relating to the prevention of terrorism. These services may access connection data, undertake security interceptions, make sound recordings of locations and vehicles and capture digital images and data.

11. Pursuant to Article 6-1 of the Law of 21 June 2004, mentioned hereinabove, when the requirement in the fight against incitement to terrorist acts or the defence of such acts in Article 421-2-5 of the Criminal Code justifies it, the administrative authority may request of any publisher or host of an online public communication service to withdraw content that violates this Article. According to Article 706-23 of the Code of Criminal Procedure, the stoppage of any online public communication service may be decided by a judge sitting for urgent matters for the actions established in Article 421-2-5 of the Criminal Code when they constitute a manifestly unlawful disturbance. Article 421-2-5-1 of this same Code punishes the act of intentionally retrieving, reproducing and transmitting data that publicly defends acts of terrorism or directly incites these acts in order to knowingly evade the efficiency of the above-mentioned procedures.

12. Finally, since the contested provisions came into force, the legislature has supplemented the administration's powers by adopting, under the Law of 30 October 2017 mentioned hereinabove, new individual measures of administrative supervision and surveillance for the purposes of preventing the commission of terrorist acts.

13. Therefore, with regard to the requirement of necessity for infringement on the freedom of communication, the administrative and legal authorities, independently of the contested Article, have numerous rights not only to monitor online public communication services inciting or defending terrorism and punish their authors, but also to monitor an individual who accesses these services and to question and punish this individual when this access is accompanied by behaviour that reveals a terrorist intention, even before any actions of this nature are in the execution phase.

14. Secondly, regarding the adaptation and proportionality requirements in terms of the infringement on the freedom of communication, the contested provisions do not require the individual habitually accessing online public communication services to intend to commit terrorist acts. If the legislature has added to accessing the site, as an element that constitutes the offence, the manifestation that this access is accompanied by the desire to adhere to an ideology expressed by these services, this access and this manifestation are not likely to establish by themselves the existence of an intention to commit terrorist acts. The contested provisions thus punish by two years' imprisonment the sole act of accessing on several occasions an online public communication service, without requiring any terrorist intent of the author accessing them as an element that constitutes the offence.

15. Furthermore, if the legislature excluded penalising accessing sites due to a “legitimate reason” when they did not require terrorist intent as an element that constitutes the offence, the scope of this exemption may not be determined in this case, specifically because a person adhering to the ideology on the site in question seems unlikely to identify one of the examples of legitimate reasons established by the legislature. Therefore, the contested provisions introduce an uncertainty on the legality of accessing certain online public communication services and, consequently, the use of the internet for the search for information.

16. It follows from the foregoing that the contested provisions infringe on the exercise of the freedom of communication in a way that is not appropriate, suitable and proportional. Thus, Article 421-2-5-2 of the Criminal Code, without the need to examine the other claims, should be declared unconstitutional.

• On the effects of the ruling of unconstitutionality:

17. According to the second Subparagraph of Article 62 of the Constitution: “A provision declared unconstitutional on the basis of Article 61-1 shall be repealed as from the publication of the said decision of the Constitutional Council or as of a subsequent date determined by said decision. The Constitutional Council shall determine the conditions and the limits according to which the effects produced by the provision shall be liable to challenge". In principle, the declaration of unconstitutionality should benefit the individual who brought up this priority matter and the provision declared unconstitutional may not be applied in proceedings pending on the date of publication of the Constitutional Council's Decision. However, the provisions of Article 62 of the Constitution reserve for the latter the power both to set the date of repeal and to postpone its effects as well as to reconsider the effects that the provision may produce before this declaration takes effect.

18. In this case, no motive should justify a delay of its effects of unconstitutionality. This should take effect from the date of the publication of this decision.

THE CONSTITUTIONAL COUNCIL DECIDES:

Article 1. - Article 421-2-5-2 of the Criminal Code, in its wording resulting from Law no. 2017-258 of 28 February 2017 on public safety, is unconstitutional.

Article 2. - The declaration of unconstitutionality of this Article 1 shall take effect under the conditions set out in Paragraph 18 of this Decision.

Article 3. - This decision shall be published in the Journal officiel of the French Republic and notified under the conditions provided for in Article 23-11 of the Ordinance of 7 November 1958 referred to herein above.

Deliberated by the Constitutional Council in its session of 14 December 2017, in attendance: Mr. Laurent FABIUS, Chairperson, Ms. Claire BAZY MALAURIE, Mr. Jean-Jacques HYEST, Mr. Lionel JOSPIN, Ms. Dominique LOTTIN, Ms. Corinne LUQUIENS, Ms. Nicole MAESTRACCI and Mr. Michel PINAULT.

Made public on 15 December 2017.

JORF no. 0293 of 16 December 2017 text no. 90