France: As it stands, ban on filming police “with intent to harm” would threaten press freedom

Controversial article

Article 24 of the bill, currently being discussed by the national assembly’s law commission, provides for “a year in prison and a fine of 45,000 euros for disseminating, by any means or medium whatsoever, with the aim of harming their physical or mental integrity, the image of the face or any other identifying element of an officer of the national police or member of the national gendarmerie when acting during a police operation.”

Principle

As drafted, this article does not concern all photos or videos of police. The police officer must be identifiable in the photo or video and its dissemination must directly and deliberately seek to harm them. If a complaint is brought against a journalist or other person, the prosecutor must prove an intent to cause harm. In the case of journalists covering protests, it would seem, on the face of it, to be very hard to produce such evidence.

Possible consequences

Nonetheless, following a complaint, a prosecutor could seek this evidence by various means including searching the journalist’s home or office and examining their emails and social media accounts. A scathing social media post about police violence or criticism of the police in emails could be exploited in an attempt to demonstrate an intent to harm. It is impossible to know the degree to which such evidence might influence individual judges and convince them that there was a clear intent to harm.

Risks of live reporting

When a journalist is filming them, police officers might assume that the video is being broadcast live with the aim to harm them and they could arrest the journalist in a supposed “act of committing a crime” with a view to prosecution. Even if the likelihood of conviction was low, the detained journalist would have been prevented from continuing to cover what was happening.

Slippery concept

Intent is a concept that is open to interpretation and hard to determine. Any photos or video showing identifiable police officers that are published or broadcast by critical media outlets or are accompanied by critical comments could find themselves being accused of seeking to harm these police officers. For journalists, the legal risk exists and the possibility of conviction would be real.

Chilling effect

The possibility of arrest and prosecution would be liable to have a chilling effect on the entire media profession. Journalists can be induced to censor themselves to avoid prosecution and this could seriously undermine the public’s right to be informed.

Alarming comment

Speaking on BFMTV on 2 November, interior minister Gérald Darmanin said: “I made a promise, which was that it would no longer be possible to disseminate the images of police officers and gendarmes on social media. This promise will be kept because the law will prohibit the dissemination of such images.”

At no point did Darmanin say that this prohibition would be limited to an intent to cause harm and that the police would not have the right to stop journalists from photographing or filming them. The principles of press freedom and the public’s right to be informed mean that journalists must be allowed to film the police and to show how they behave and what methods they use.

Our recommendations

RSF requests clear safeguards to ensure that the proposed law:

• will not make it possible for journalists to be arrested while filming live in the field;
• will not, under any circumstances, make it possible to prevent news media and reporters from publishing or broadcasting photos or video footage of police officers.

RSF also calls for the rejection of proposed amendments that would eliminate any reference to an intent to cause harm. If such an amendment were adopted, the law would become an outright ban on disseminating photos or video of police officers, which would make it impossible for the media to cover most public events and would constitute an extremely serious press freedom violation.

France is ranked 34th out of 180 countries in RSF's 2020 World Press Freedom Index.