Christine Treguier on Mon, 27 Mar 2000 17:25:44 +0200 (CEST)

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<nettime> France again

Decision of the french supreme court of appeal :  no prescrition on

On march 21the supreme court rejected the "pourvoi en cassation"  of
french artist Jean Louis Costes, who was contesting a decision of the
court of appeal against him; the court had judged that on Internet, the
contents cannot be restricted by prescription, because it is assimilated
to "continuous publishing". 

These decisions are serious threats to freedom of expression in France : 
the decision is going against the actual constant legislation : it is the
first time a judge is contesting the principle according to which
expression offenses are instantaneous offenses and a prescription delay
has to be calculated from the publication date.  The principle
establishing that an author cannot be sued for a content after a 3 months
delay after publishing, is one of the foundations of freedom of expression
since the 19th century. At the beginning of Napolean reign it was three
years. immediately after, it felt to three months. It has never been
interrupted since then, except during nazi occupation and Vichy. 

The objective was to protect authors from beeing sued ad infinitum, a form
of persecution and pressure which would equal censorship.  The benefits of
prescription have been enlarged to all medias, without exception, as they
appeared. Logically it should apply to Internet. 

The backlash is extremely serious : authors and persons responsibles for
contents ( a very sensible notion at the moment in France) will be
permanently under threat of trials which will lead them to ruin and
closing of any "disturbing" site and to self-censorship of those who will
accept the rules (strange... I wrote that already an hour ago).  The
threat is also on all the cultural, heritage, historical and
informationnal contents, as soon as they will be published on the Net. 
There will be some individuals, associations or public services to dislike
part of them and sue them, no matter if they were published eight hundred
years ago and they belong to public domain. 

A bit of history on the case : Costes is an undergournd performer and
musician, well know for, to make short, pointing at the society's
disfunctionnings through "pornographic parodies". he was sued two years
ago by a jewish students association (AEIJF) claiming his lyrics published
on the Net were nazi and incitations to racial hate.  He was condemned,
cast appeal, and went to supreme court because of the non prescription
decision risks a jail penalty of two years, a X hundred thousands francs
of fine, the closing of his site and... a two years probation period
during which he would be forbidden to produce similar artpieces. 

More on

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