The French Conseil d’Etat found lawful a system of administrative blocking of websites which violates international law on freedom of expression.
In a decision handed down on 15 February 2016, the French Conseil d’Etat has rejected claims that the decree which permits the administrative blocking of websites that condone terrorism or distribute child pornography should be quashed. In July, ARTICLE 19 submitted an amicus curiae brief in order to support the claims brought by French associations La Quadrature du Net, French Data Network, and Fédération des Fournisseurs d’accès à Internet associatifs .
It is clear that the goals that the French legislators seek to achieve, namely the protection of national security, the fight against terrorism, and preventing child pornography, are legitimate under international standards on freedom of expression. However, the means that have been adopted in order to reach these goals are not compatible with other requirements of international law, in particular the condition that all restrictions on freedom of expression should be proportionate.
“Website blocking is a severe form of censorship. It’s like using a trawler net rather than a fishing line – it catches legitimate content at the same time as content that may be legitimately prohibited. There’s an inherent risk of over-blocking which therefore leads to unnecessary and unjustifiable restrictions on freedom of expression,” explained Pierre-François Docquir, Senior Legal Officer at ARTICLE 19.
In the brief submitted to the Conseil d’Etat, ARTICLE 19 insisted that the prohibition on condoning terrorism under French law is defined in a particularly vague manner. As was demonstrated in the weeks after the attacks of January 2015, this prohibition allows for dangerously arbitrary interpretations of the law. With regard to the fight against child pornography, the legislator’s choice to block websites is equivalent to simply attacking the symptom of the evil rather than its root causes.
It is well accepted that technologies used to block websites are generally capable of both missing the target (not all websites that warrant prohibition will be blocked) and hitting other targets (websites that do not warrant prohibition may be blocked).
In the observations submitted to the Conseil d’Etat, ARTICLE 19 also expressed concern at the absence of prior judicial control over the police decision to block a website.
“A restriction as severe as website blocking is only legitimate if authorised by a court or similarly independent and impartial body, consistent with the guarantees of a fair trial under international law,” concluded Pierre-François Docquir.