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France told to scrap rule criminalizing downloads of material justifying terror

Highest constitutional authority says proposed law targets people with no intent to attack; ruling comes as country battles upsurge in anti-Semitism, allegations of systemic racism

Illustrative: A man typing on a computer keyboard, January 24, 2017. (Flash90)
Illustrative: A man typing on a computer keyboard, January 24, 2017. (Flash90)

PARIS (AFP) — France’s highest constitutional authority on Friday scrapped a new offense that could see people jailed and fined heavily for downloading content that can be interpreted as justifying terrorism.

The crime, dubbed “possession of an apology for terrorism,” infringed on France’s long-held constitutional guarantee of freedom of expression in a way that was not necessary, appropriate, or proportionate, the Constitutional Council ruled.

The new crime came into being following a decision of France’s highest appeals court in January.

The appeals court ruled on a challenge brought by a man who was jailed after being arrested with videos on his laptop and two mobile phones that prosecutors said amounted to a justification for terrorism.

The new crime was punishable by five, seven or 10 years in prison and a fine of between 375,000 and 750,000 euros ($420,000-840,000).

Rights bodies had criticized the January ruling by the appeals court as an attempt to get around two earlier decisions by the Constitutional Council against establishing a law prohibiting “habitual” consultation of terrorist sites.

Lawyer Patrice Spinosi answers reporters outside the Conseil d’Etat, France’s top administrative court, in Paris, August 26, 2016 (AP Photo/Thomas Padilla)

“It is a fresh victory,” said Patrice Spinosi, a lawyer for France’s Human Rights League and the plaintiff in the case, who had been sentenced to an effective four years in prison.

“The appeals court was trying to reestablish this crime of consulting terrorist sites with an artificial construction. The Constitutional Council has confirmed the jurisprudence,” he told AFP

In its ruling, the council — the body tasked with ensuring that laws conform to the constitution — pointed to a principle in France’s post-revolution Declaration of the Rights of Man and the Citizen, on which the country’s founding law is based.

Dated 1789, it guarantees “the free communication of thoughts and opinions” and the right of every citizen to “speak, write and print freely” unless the right was exercised abusively and in violation of the laws of the land.

Condition for democracy

The council said the purpose of the offense created by the appeals court ruling was to prevent dissemination of dangerous ideas and the indoctrination of individuals to commit acts of terror.

But as it stands, even a person who has no intent of perpetrating terrorism, nor is an apologist for such acts, can be found guilty and jailed.

The council said freedom of expression was a condition for democracy and a guarantee for other rights and freedoms.

Freedom of expression can only be infringed upon when “necessary, appropriate and proportionate to the objective being pursued.”

That was not the case here, as the government already had at its disposal an array of laws and criminal procedures with which to prevent the commission of terrorist acts, said the council.

It thus held that the new offense “infringes on freedom of expression and communication.”

The council’s members, known as “the sages,” include former presidents and some senior politicians.

On Thursday, they ruled against a key part of new legislation that aims to fight hatred online but also sparked controversy among critics as harming civil liberties.

The law, passed in May, obliges platforms and search engines to remove offensive content — incitement to hate or violence and racist or religious bigotry — within 24 hours or risk a fine of up to 1.25 million euros ($1.35 million).

But the council said these obligations were harmful to freedom of expression and communication.

France has been the target of a string of terror attacks since 2015, and has recently also been battling an upsurge in anti-Semitism and allegations of systemic racism, including in its police force.

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