What does the law say?

• It is necessary to distinguish between incitement to hatred, discrimination, and violence from insult and defamation.
  Incitement to hatred is the act of encouraging others, through speeches, writings, or any other means, to express hatred, violence, or discrimination against certain people because of, for example, their religion.
• There is a possibility of reclassification between the offenses of incitement to hatred, defamation, and racist insults (Article 54-1 of the law of July 29, 1881, modified by the Equality and Citizenship law of January 27, 2017). This is an exception to the rule that, in matters of press law violations, the qualification of the incriminated act is irrevocably fixed by the act of prosecution. This means that the trial court can, while respecting the adversarial principle, reclassify offenses of racial defamation, racial insult, and incitement to racial hatred. Example: if you file a complaint for racial defamation, the judge can reclassify it and prosecute the perpetrator for racial insult instead of defamation.
• Moreover, a cumulation of qualifications can be characterized. Thus, “the interests protected by the criminalization of racial defamation, and those protected by that of incitement to discrimination or hatred based on origin or race, are different, [so that] these qualifications are not incompatible with each other, and they can be applied concurrently” (Court of Cassation, Criminal Chamber, October 30, 2012, No. 11-88.562).

Criminal Offense:

• Provocation or incitement to discrimination, hatred, and violence is an offense established by Law No. 72-546 of July 1, 1972, relating to the fight against racism, which amended the law on freedom of the press of July 29, 1881 (Art. 24 para. 7):

“Those who, by one of the means set out in Article 23, have provoked discrimination, hatred, or violence towards a person or group of persons on the grounds of their origin or their belonging or non-belonging to a particular ethnicity, nation, race, or religion, shall be punished by one year’s imprisonment and a fine of 45,000 euros or by one of these two penalties only” (modified by Law No. 2021-1109 of August 24, 2021 – Art. 38).

This law of July 1, 1972, is followed by Law No. 90-615 of July 13, 1990, aimed at suppressing any racist, anti-Semitic, or xenophobic act, known as the Gayssot law, which states in its Art. 1 that “any discrimination based on membership or non-membership of an ethnicity, nation, race, or religion is prohibited”.

Incitement to Discrimination, Hatred, or Violence Committed in Public:

The offense of incitement to discrimination, hatred, or violence therefore requires the combination of several elements in order to be legally constituted and thus repressed:

• A public character, “by one of the means set out in Article 23 (of the 1881 law)”, namely speeches, shouts, or threats uttered in public places or meetings, or by writings, prints, drawings, engravings, paintings, emblems, images, or any other medium.
• The necessity of a call or exhortation, which can be only implicit, (Crim. June 7, 2017, No. 16-80.322). Thus, the Court of Cassation has been able to retain an implicit exhortation for a statement by Éric Zemmour in which he gives Muslims “the choice between Islam and France” (C.A Paris, May 3, 2018, No. 17/04988).
• A call “to discrimination, hatred, or violence” means that an explicit call for the commission of a specific act is not required: “it is sufficient that, both in their meaning and in their scope, the statements tend to arouse a feeling of hostility or rejection towards a group of people” (Cass. crim. April 12, 1976, No. 74-92515). The European Court of Human Rights has considered that while public debate may allow for a certain degree of exaggeration and provocation, it should not arouse a feeling of rejection or hostility towards any particular community (ECHR, May 7, 2010, Jean-Marie Le Pen v. France).
• “With regard to a person or group of persons” determined: the statement or fact in question must “reflect on the entire community” (Paris Regional Court, 17th Chamber, September 7, 2016). This is the case, for example, if “the incriminated text constitutes a generalized stigmatization of Muslims (…) as it attributes to Muslims various deviances leading them to perverse practices and criminal behaviors (…)” (Court of Cassation, June 19, 2018, No. 17-86.604).
• An intentional character, the latter being inferred from the very content of the statements and the context.

Non-public incitement to discrimination, hatred, or violence:

• It constitutes a misdemeanor and not a felony;
• It is non-public if it has been read or heard only by a restricted circle of people sharing the same interests, during a professional meeting, within the family circle for example, or on the internet via an account accessible only to a limited number of people selected by the author of the statements.
• It is governed by Article R625-7 of the Penal Code, which states that:

“Non-public provocation to discrimination, hatred or violence against a person or group of persons on account of their origin or their belonging or non-belonging, true or supposed, to an ethnic group, a nation, a so-called race or a determined religion is punishable by the fine provided for fifth-class misdemeanors.
The same penalty applies to non-public provocation to hatred or violence against a person or group of persons on account of their sex, sexual orientation or gender identity, or their disability, as well as non-public provocation, against these same persons, to discrimination provided for in Articles 225-2 and 432-7“.

Penalties for Incitement to Hatred

If the provocation is public, it constitutes an offense and can be punished by 1 year of imprisonment and a fine of 45,000 euros.

When the acts are committed by a person holding public authority or entrusted with a public service mission in the exercise or on the occasion of the exercise of their functions or mission, the penalties are increased to 3 years of imprisonment and a fine of 75,000 euros.

If the provocation is private, the perpetrator faces a fine of 1,500 euros (Art. R625-7 of the Penal Code).

The prosecutor can also implement alternative measures to prosecution, such as a citizenship course.

The time limit for legal action is one year from the date of the offense. The Court of Cassation specifies that any reprinting, constituting a new publication, starts a new limitation period (Crim. Oct. 2, 2012, No. 12-80.419).

The Judge’s Assessment of Incitement to Hatred

It is up to the Court of Cassation to exercise its control over whether the constitutive elements of the offense are found in the prosecuted statements.

The Court of Cassation has, for example, had the opportunity to consider that: “the expressions ‘invaders’, ‘occupiers of our soil’, ‘disrespectful and harmful foreigners’, induce a notion of aggression, and tend to arouse a feeling of hatred or acts of discrimination towards immigrants, considered as a group of people, and targeted because of their non-belonging to the French community” (Court of Cassation, crim., June 24, 1997, 95-81.187).

Has also been qualified as “a call for rejection and discrimination of Muslims as such, the entire discourse of the defendant being centered on the idea that all cannot (…), even when they are not violent, be anything other than adherents of jihad, without dissociating themselves from those who engage in violence in the name of their faith” (Court of Cassation, crim., September 17, 2019, 18-85.299).

What to Do if You Are the Target of Statements Inciting Hatred, Violence, or Discrimination?

• If they are written, take screenshots of all the statements; the screenshots should indicate the date of the statements.
• Keep the URL link;
• It is possible to have a bailiff’s report made;
• Then, you can have content removed from the internet by making a request to the author of the content, then to the site host.
• In case of urgency and obvious harm, you can ask the judge for an interim injunction to have content removed by the host.
• In case of incitement to hatred on the internet, you can report it on Pharos.
• You can contact an association that fights against discrimination and racism.
• You can file a simple complaint.
• Associations whose purpose is to fight against racism can also take legal action. They can file a complaint or become a civil party and claim damages.
• You can choose the procedure by way of direct citation if the author is identified.
• You can call on Equitas who can provide you with legal assistance.

APPLICABLE REFERENCES

Equality and Citizenship Law of January 27, 2017; Law No. 72-546 of July 1, 1972 relating to the fight against racism; Decree No. 2017-1230 of August 3, 2017 relating to non-public provocations, defamation and insults of a racist or discriminatory nature; Articles 24 para.7 and 50-1 and 54-1 of the law of July 29, 1881 on freedom of the press; art. 6 of Law No. 2004-575 of June 21, 2004 for confidence in the digital economy; article R625-7 of the Penal Code; Decree No. 2017-1230 of August 3, 2017 relating to non-public provocations, defamation and insults of a racist or discriminatory nature; Article 20 para.2 of the International Covenant on Civil and Political Rights of 1966; Law No. 90-615 of July 13, 1990 aimed at suppressing any racist, anti-Semitic or xenophobic act.

Case law: Court of Cassation, criminal chamber, October 30, 2012, 11-88.562; Cass. crim. June 7, 2017, No. 16-80.322; C.A Paris, pole 2 – ch. 7, May 3, 2018, No. 17/04988; Cass. crim. April 12, 1976, No. 74-92515; TGI Paris, 17th Ch., September 7, 2016; Cass. Crim., June 24, 1997, 95-81.187; CE, order of April 29, 2022, No. 462736, No. 4; CE, July 11, 2018, No. 414819.