According to the Court of Cassation, freedom of expression does not authorize the call to boycott Israeli products

[This article was rived by the author on November 7, 2015.]

The criminal division of the Court of Cassation [France’s highest appeals court] issued two decisions on October 20, 2015, affirming that freedom of expression does not authorize the call to boycott Israeli goods; such a call is henceforward a misdemeanor in France and punishable as such. Twelve activists of the Boycott, Divestment, and Sanctions (BDS) campaign had appealed the two verdicts issued by the Colmar Appeals Court on November 27, 2013 (CA Colmar Arrêt N12/00304 and Arrêt N12/00305). In rejecting the appeals of the activists who had been sentenced, the Court of Cassation affirmed that in calling upon consumers not to buy Israeli goods, the activists were indeed guilty of a misdemeanor — a call to national discrimination — and that the Colmar Appeals Court sentences were thus legally justified.

We remind the reader that these activists had taken part in two BDS actions in 2009 and 2010 in a supermarket in the region of Mulhouse [in Alsace]. They had chanted slogans, handed out leaflets, and worn articles of clothing calling for a boycott of Israeli goods. Charges were brought against them by the prosecutor but they were acquitted by the criminal court of Mulhouse on December 15, 2011. The subsequent two decisions of the Colmar Appeals Court nevertheless found them guilty of the offense of “provocation to national discrimination.” The offense in question was the one indicated in article 24, subparagraph 8, a 1972 amendment to the press law of 1881, which establishes the punishment of one year of imprisonment and a fine of 45000 euros for anyone who “provokes discrimination, hatred, or violence against a person or a group of people by reason of their origin or their membership or non-membership in a specific ethnic group, nation, race, or religion.” In the specific case at hand, the activists were found guilty of provocation (by all means: writings, slogans, the wearing of clothes, etc.) of discrimination against the producers and suppliers of goods (considered as a “group of people”) by reason of their belonging to the Israeli nation.

The recourse to such a text — which was conceived in 1972 as a way of combatting discrimination against physical persons and in no case in order to prohibit peaceful calls to boycott the goods of a state whose politics is criticized — seems, however, to conflict with the rule of strict interpretation of criminal law. It also seems to contradict the requirement that criminal standards be predictable; a reading of the text in question hardly suggest to the citizen that the call for a boycott could be deemed offensive. The interpretation is all the more questionable in view of the fact that there is no shortage of examples in recent years of citizens, organizations, artists, intellectuals, and even politicians calling for a boycott of the products of a state that violates human rights (South Africa in the time of apartheid, Rhodesia, Russia, China, Iran, etc.)
For the Colmar Appeals Court, it is of little importance that the accused activists belong to an organization and are responding to a national and international call to boycott Israeli goods; it is of little importance that the organization in question has firmly denounced all forms of antisemitism and racism and unequivocally rejects the boycott of individuals; it is of little importance that the supermarket action was totally peaceful, involving neither damage nor assault, and with no charges brought by the supermarket itself; it is of little importance that there was no interference with the freedom of commerce of everyone concerned — consumers, vendors, and producers; it was moreover of little importance that the goal of the activists was to bring about respect for international law by Israeli authorities; finally, it was of little importance that some Israeli products carry fraudulent labels (because they come from Israeli settlements that are illegal under international law) and consumers are thereby deceived. The two verdicts of November 27, 2013 stated the following: “provocation to discrimination is not permitted by the right to freedom of opinion and expression when it constitutes a positive act of rejection, manifested by incitement to treat differently a category of persons, in this case producers of goods in Israel.” Several other jurisdictions, notably the Paris Appeals Court, had come to the exact opposite conclusion, namely that the call to boycott Israeli goods is a form of freedom of expression in a democratic society, referring to the jurisprudence of the European Court of Human Rights of Strasbourg (see also). Hence the idea of basing the appeals to the Court of Cassation on European law.

The appeals argued that the text of article 24, subparagraph 8 of the press law of 1881 cannot be applied to activists who call for a boycott of the goods of a state whose politics is criticized, because that would violate their right to freedom of expression guaranteed by article 10 of the European Convention of Human Rights. Specifically, the Court of Cassation was asked to judge that the national law (article 24, subparagraph 8 of the press law) should be set aside because it is in contradiction with European law that takes precedence (article 10 of the European Convention of Human Rights). The two decisions of October 20, 2015 state that there is no contradiction between the two standards as applied in the present instance. For the Court of Cassation, calls to boycott Israeli goods can be prohibited by criminal law in the name of “defense of order” and “protection of the rights of others,” two restrictions expressly provided by article 10 of the European Convention of Human Rights; freedom of expression not being an unlimited right. “Defense of order” should be understood as defense of public order to avoid possible disturbances or problems of security. “Protection of the rights of others” should be understood as protection of the rights of producers and suppliers of Israeli goods.

Nevertheless, it has to be said that these restrictions were put forward by the Court in a peremptory manner and applied to peaceful activists expressing themselves on a matter of general interest and of considerable international importance, without genuinely taking into consideration the requirements of democratic debate and without attempting to balance the interests in play. How could the peaceful action in Mulhouse have created a disturbance to public order or posed problems of security? How were the rights of Israeli producers affected — requiring an action for their “protection” — when at no time did the activists interfere with the exercise of free commerce? And even if that had been the case, how can this justify such a powerful attack on freedom of expression, and thus such a limitation of democratic debate on a matter of public interest? The Court of Cassation provides no answers to these questions, nor did the Colmar Appeals Court. It has to be hoped that the affair will be brought before the European Court of Human Rights in order to clarify these matters. Its jurisprudence, traditionally more protective of freedom of expression than that of the Court of Cassation, gives reason for hope to all those who were shocked by these two decisions that leave France totally isolated.

By these two decisions of October 20, 2015, our country becomes the only one in the world — alongside Israel — to penalize civic appeals not to buy Israeli goods. In all the major democratic countries, the Israeli government’s repeated demands to penalize boycott calls have been rejected, in the name of freedom of expression, of the need for a democratic debate (which may include controversial aspects) on international questions, and of respect for political associations. This French-style penalization occurs at a time when the BDS movement is advancing everywhere in the world, among corporations, universities, the art community, churches, trade unions, and political parties. Whether one is for or against BDS as a way of bringing about a solution to the Israeli-Palestinian conflict based on international law, no one outside France denies the peaceful character of the movement and its right to act and to develop, notably by boycott calls, including the call to boycott Israeli goods.

Ghislain Poissonnier, magistrate