France faces 'litmus test' for freedom of expression as dozens arrested in wake of attacks

Graffiti free speech © Scott Kim (Creative Commons)
“Freedom of expression doesn’t have favourites. Now is not the time for knee-jerk prosecutions” – John Dalhuisen
At least 69 arrests in France this week on the vague charge of “defending terrorism” risks violating freedom of expression, Amnesty International said. 
All the arrests appear to be on the basis of statements made in the aftermath of the deadly attacks against the magazine Charlie Hebdo, a kosher supermarket and the security forces in Paris on 7 and 9 January. 
The arrests and prosecutions are the first to be carried out under the new November 2014 counterterrorism law. 
They are based on a criminal code article under which “inciting” or “defending” terrorism carries a sentence of up to seven years and a EUR 100,000 fine. 
While “incitement” and “defence of terrorism” were already offences in France, the November 2014 law allows the process to be fast-tracked by the authorities, which has happened in several of this week’s cases. 
Amnesty International’s Europe Director John Dalhuisen said:
“In a week in which world leaders and millions around the world have spoken out in defence of freedom of expression, the French authorities must be careful not to violate this right themselves. How they act in the aftermath of these horrific killings is the litmus test for its commitment to human rights for all.
“Freedom of expression does not have favourites. Now is not the time for knee-jerk prosecutions, but measured responses that protect lives and respect the rights of all.” 
Besides the highly publicised case of comedian Dieudonné M’bala M’bala, other cases include a man shouting in the street: “I am proud to be a Muslim, I do not like Charlie, they were right to do that”, and also an intoxicated man who, upon arrest for drink-driving, allegedly told the police “there should be more Kouachi; I hope you are next.” 
Another case involves a 21-year-old who was caught without a ticket on a tram, and sentenced to 10 months in prison for saying, “The Kouachi brothers is just the beginning; I should have been with them to kill more people.” 
The arrests, investigations and convictions follow a circular issued on Monday 12 January in which Minister of Justice Christiane Taubira instructed prosecutors that “words or wrongdoing, hatred or contempt, uttered or committed against someone because of their religion must be fought and pursued with great vigour”. 
Some of the recently reported cases in France may cross the high threshold of expression that can legitimately be prosecuted. Others, however offensive the statements made, do not. 
Notes to the Editor
Governments have an obligation under international human rights law to prohibit advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. But vaguely-defined offences such as “defence of terrorism” risk criminalising statements or other forms of expression which, while undoubtedly offensive to many, fall well short of inciting others to violence or discrimination. 
International treaties on the prevention of terrorism require criminalisation of incitement to commit a terrorist offence. However, there is a risk that notions such as "defence of terrorism” will be used to criminalise statements made without the necessary element of intent and the direct and immediate likelihood that they would prompt such violence. 

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