March 09, 2007

#375 Answering blogger friends questions about Sarkozy's law against "happy-slapping"

Posted at 00:39 in Podcasts, Politics | | 8 Comments



There have been many questions from blogger friends about the law to fight "happy-slapping" that Sarkozy defended. I have to say I just learnt about this controversy and the fact I said I would vote for Sarkozy and (try to) help him in his online campaign and his internet programme does not make me somebody who knows everything he does or support all decisions he makes. There are hundreds of people who work both at the interior ministery and the campaign headquartes, I am just a blogger citizen who decided to support him, no more. I am not paid by him, I have no official job there, I am not a politician. I am free to cancel my support to him anytime if there are decisions I do not like. Being a blogger and having done close to 400 audio and video podcasts, for sure I would not support any law going against citizen journalism and freedom of speech, like you. This is not the case here.

Being close to him and his team gave me the opportunity today to tell them immediately about the questions raised and get an answer in a matter of hours. My role ends here I do not answer for him, I took the messenger role, and will be happy to get more questions about this if needed. This is one of the reasons why I think it is good we have more bloggers with any political idea being plugged in the political process and having an access to them.

In my opinion, this is a tempest in a teapot because nobody (jounalists or bloggers) seem to have taken the time to verify what was the law saying in details. It is ok I also blog most of the time without doing a real investigation, but we should be careful about not looking like tabloid writers rather than citizen journalists about this law.

-the law aims at fighting "happy slapping" only (filming orchestrated violence and sharing the images on the web, the intention being to harm the victim)
-the law only applies to "severe violence", being defined in French law in a very detailed way (such as torture or barbarous acts, causing permanent injuries or death, rape, etc).
-the law precisely explains that it is NOT APPLICABLE when the recording or the broadcasting:
* results from the "normal exercise of a profession whose object is to inform the public". The journalist word is not quoted, and the law was probably designed a year or two ago when the citizen journalism movement was not that large.
* "it is done in order to be used as proof or evidence" - i.e., to alert the authorities
-the intent of the authors will be taken into account
-the Rodney King case in 1991, filmed by George Holliday was recorded and broadcasted to alert the public and the authorities of the authorities of the abuse, ie. to serve as a proof and would not be prohibited under the law
-severe violence reported by citizen journalism would not be prohibited under the law as long as the citizen journalist did it in order to alert the authorities. The law requests that he not only broadcasts the video but also alerts the authorities ie. it is ok to record and broadcast, but do also assist the victim by calling the police at the same time...
Thanks, Ethan, for the podcast.

Cher Loïc,

The actual text of the legislation is here http://www.assemblee-nationale.fr/12/ta/ta0680.asp
and RSF's commentary, which seems quite valid, http://www.rsf.org/article.php3?id_article=21237
here. ( <-- no HTML allowed in your comments!)

Actually reading the legislation reveals that it is a somewhat wide-ranging abridgment of the urbaine and rural codes dealing with issues of order and 'delinquency,' spanning from feral cats to unsavory images including those of pornography and violence.

As the RSF article points out, 'Article 222-13 concerns' and extends statutory authority over violence "committed by an agent of the state in the exercise of his duties." ' Given precedent, one might also question whether the legislation extends authority over so-called 'pornographic' images, which allegedly might 'contribute to the delinquency of a minor,' transmitted into French territories from extraterritorial locations.

The exact exempting phrase of the legislation is "Le présent article n’est pas applicable lorsque l’enregistrement ou la diffusion résulte de l’exercice normal d’une profession ayant pour objet d’informer le public ou est réalisé afin de servir de preuve en justice," or, roughly in English, "this legislation does not apply insofar and the recording or transmission occurs in the usual practices of a profession whose goal is to inform the public, or which is made in order to serve as evidence."

While I believe there is reason for concern given the wide extension of scope elsewhere in the legislation, and whereas the alleged "intent" of the Interior Ministry and its personnel have little relevance to French civil procedure, the dual exclusion of the 'usual practices' of 'professions' intent on 'informing the public,' and of recordings made to 'serve as evidence (or: 'witness'), provide a large leeway for what has come to be called "citizen journalism."

Regardless, as written, the the legislation would criminalize the publication of a video recording of French soldiers murdering Algerian protesters and dumping their bodies into the Seine, if such a recording had been made incidentally by a third-party neither exercising professional duty to inform the public, or an 'intent' to record evidence of the event. What would be the status of video recording made 'incidentally' by a tourist or security camera?

The "devil is in the details," as it is said in English, and such questions are indeed disturbing in the context of a legislative act whose apparent aim is to restrict freedom of expression in various situations.

As for the Interior Ministry's response, we also have a word in English, "spin." Je ne suis pas exactement sur de la phrase pareille en francais...

Kenneth Thomas, March 09, 2007 at 05:38

Hello Loic,

As a blogger, due to lack of time, I rely on 'second hand reporting' a lot of the time. That does not mean I don't try to stand it up, at least by checking against multiple sources, all of whom I trust.

For my post on this law I pulled together what I thought were some very interesting, good, worrying perspectives, and relied on a wide range of sources, MSM as well as bloggers, one of the most trusted being Reporters Sans Frontiers. What you're effectively saying, is that even they got this story wrong.

The answers you got from the ministry of the interior, and Kenneth's comment here, shows that this may not be the major threat to citizen journalism as so many fear, but Kenneth's comment doesn't make me less worried about this dubious law.

We've seen too many times how the outcome of court cases hinge on some small nuance in the legal texts, or even on interpretations of laws that are ambiguous. And this law is pretty ambiguous.

I'm not saying that this is your fault, by all means, but being seen as Sarkozy's online adviser, and being an expert in this environment yourself, it's natural to hope that you would have some positive influence on Sarkozy's understanding of this environment.

As for flagging your political allegiances, nothing wrong with that, to the contrary.

(more on the other issues you answered on my blog in the comments there)

Kristine Lowe, March 09, 2007 at 09:28

It might just be a coincidence but I have to ask the question - is this law in any case related or fueled by the video "le vrai Sarkozy" which shows Sarkozy's hardline political position of zero tolerance against crime and a fight-back policy regarding police action in the streets, illustrated with videomaterial which shows violent (maybe overly violent) behaviour of french police?

http://www.youtube.com/watch?v=dLbLLoqFOOo

Thomas Praus, March 09, 2007 at 17:06

As far as I know, "citizen journalism" isn't a profession, and showing violence to the population to help them understands what happens can't be in any way considred as legal evidence.
Because of this, I can't see how citizen journalists could be protected in any way by these exceptions.

Besides, when you say that "the intent of the author will be taken into account", I have to wonder : are you all the judges in France at the same time ? Because I can tell you that judges interpret texts the way then want, and they just love to use any ambiguity in a law to use it as a reason of prosecution. And I swear I really know what I'm talking about...

Finally, when you say it only applies to severe violence, first, it's completely untrue, it also applies to violences preventing from working for eight days or less, or even not serious enough to stop people from going to work. Secondly, even if it were true... so what ? It is okay to show a policeman hurting someone, as long as the policeman is not beating too seriously ?
Sorry but serious violence is, to me, even more important to be shown by citizen journalists.

Oh, and one more thing : No, the law doesn't say "you can publish if you also alert the authorities" : it say "you can publish ONLY if the AIM of the video is to serve as evidence in justice. That's to say that posting it on a blog to say "see what they've done ?" is illegal : the only legal thing to do is to send the video to a prosecutor.


You obviously don't know much about how to interpret laws, and how laws are usually interpreted by judges. Fine, you can't be good at everything. Nobody can. But please, don't abuse us or let some people abuse you.

Because in this case, either you're lying, or you've been lied to. In either case, you're wrong.

Sonic, March 09, 2007 at 21:29

This law is being widely described, even in cynical blogs, as officially an attempt to stop "happy slapping". In fact you make the same claim in your first interpretation:
-the law aims at fighting "happy slapping" only

The understanding behind the concept of "happy slapping" is that the assault does not result in physical harm. Otherwise, in the UK at least, perpetrators could already be prosecuted, for common assault or worse.

So I am confused about your second interpretation:
-the law only applies to "severe violence"

Which one?

And can you explain why France needs a new law to prevent either?

t, March 10, 2007 at 21:46

Of course, France doesn't need a new law to prevent this behaviour, because it is already illegal under current law. Politicians (often lawyers by profession) love drowning the system in a sea of unnecssary laws in order to create as much scope for abuse of power as possible.

I would urge you to refrain from reiterating "the aim" or "intent" of this law mindlessly because it is totally irrelevant. What counts is what the law says, not what ministers claim it says or aims to achieve.

The distinction between professional and non-professional journalists in the applicability of the law seems to be utterly bizarre. Why is it OK for a journalist to perform happy slapping but not for an ordinary citizen? (and I mean "happy slapping" in the widest sense of word, including snuff films).

Fundamental rights are not to be meddled with. Please take a note from the history books.

telos, March 16, 2007 at 01:24

Telos has hit the nail on the head here, when he says you should refrain from reiterating "the aim" or "intent" of this law. We hear this kind of thing often these days...for example when George Bush tells Americans not to worry about the government's dismissal of the FISA act, its spying without judicial overview, and expansion of powers in the Patriot act, because they're all good guys and will of course do the right thing. To focus on what the nice, well intentioned folks who made the law meant, instead of what the law actually says, is dangerous. The fact that the law uses a phrase like 'practice of a profession' is a giant red flag. How do you define this? Was the Rodney King beating really 'recorded and broadcast to inform the public'? Or was it simply a guy going 'Holy shit, look at that guy getting stomped on...'. I can hear the lawyers arguing intent now. So, Bottom line: stop banning!

Tah, June 20, 2007 at 20:18

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Welcome to my blog. Based in San Francisco, I am an entrepreneur and a blogger. I just started my fifth startup, Seesmic, a community driven video social software. Here is what TechCrunch says about it.

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