The Potential Expansion of French Holocaust Denial Laws to Non-Public Speech

In 1990, in France, the Gayssot Act made it an offense to challenge “the existence of one or several crimes against humanity as defined by article 6 of the Charter of the International Military Tribual […] and which have been committed either by members of an organization declared criminal pursuant to article 9 of said Charter, or by a person declared guilty of such crimes by a French or international jurisdiction,” if the doubts or denial are expressed in public places or meetings, in publicly distributed writing, or in audiovisual communication.[1] Since 2014, the punishment has been up to one year’s imprisonment and a fine of up to €45,000.[2]

It is as a consequence of this law that, among others: in 1991, Robert Faurisson and his interviewer were sentenced to a total payment of 326,832 francs (€84,093) for denying the existence of homicidal gas chambers in the concentration camps;[3] in 1998, Roger Garaudy was sentenced to a a fine of 120,000 francs (€27,481) for denying that the “Final Solution” referred to extermination rather than deportation, and for denying the use of homicidal gas chambers;[4] and in 2022, a political activist was sentenced to a fine of €10,000 for saying that the figure of six million Jewish victims was “invented,” “rested on mythmaking [affabulation]” and was “a symbolic figure born of Zionist propaganda.”[5]

On 6 March 2024, the French National Assembly approved a proposed law “to strengthen the penal response to offenses of a racist, anti-Semitic or discriminatory nature,”[6] whose object is to extend existing laws governing so-called “hate speech” and denial of crimes against humanity to the private sphere. Its third article reuses the exact same wording as the Gayssot Act but extends it to “non-public” speech; the proposed punishment is a fine of 3,750 euros.[7]

The Assembly member who lodged the proposal, Mathieu Lefèvre, stated:[8]

“The work at the committee stage made it possible substantially to complete the text, filling another legal gap by creating two new offenses. Although it is currently forbidden to advocate or challenge the existence of a crime against humanity in public, it is possible to do so in a non-public setting. I say ‘non-public’; I am not saying ‘confidential’ – we will perhaps come back to the nuance during the discussion of the amendments. Today, in a workplace [entreprise] or a performance hall, it is possible to deny the Shoah or minimize the Armenian genocide. Thanks to their amendments, this will no longer be the case tomorrow.”

The Minister of Justice, Éric Dupond-Moretti, added:[8]

“I want to emphasize here the need to more severely repress non-public abuses of freedom of expression. Comments made in a non-public place or meeting to people who are linked to the author by a community of interest are not of a public nature. However, there is no doubt that discriminatory insults, defamation and provocations between people linked by a community of interest, for example in a professional context or even in educational establishments, create by themselves, intrinsically, a disturbance to public order, violate the dignity of victims and encourage, obviously, the commission of offenses. Furthermore, it is a balanced text since any application of these provisions is excluded for comments made in confidence.

Article 3 aims to create a new offense of non-public apology or denial of war crimes or crimes against humanity. The texts reproduce verbatim those which repress the same facts when they are committed publicly. This provision is necessary. It makes it possible to sanction comments that are not made in public places or during public meetings. From now on, such comments, as long as they are made under conditions excluding any secret or confidential nature, even if they are not public, may be repressed.”

Deputy Jérémie Patrier-Leitus, who worked on the law at the committee stage, remarked:[8]

“Our law must assume unfailing firmness in this matter: even in a non-public setting, such comments [i.e., so-called “hate speech”] are unacceptable. We cannot accept this violence and tolerate its trivialization. I am delighted with the provisions adopted in the Law Committee and, even more so, with the fact that the work carried out by a number of deputies has made it possible, for example, to criminalize the non-public denial and apology of crimes against humanity.”

Assembly member Raphaël Gérard, in explaining why he welcomed the proposal, alluded to the new possibilities offered by the law:[8]

“The difference between the public and non-public nature of a speech, in the case of an offense committed through private messaging applications such as WhatsApp or Telegram, is extremely tenuous given the audience of the discussion groups. Therefore, in view of the continuum of hate speech, it does not seem relevant to introduce a distinction in terms of procedural arrangements according to whether the acts are public or not with regard to the offense of condoning or denying a crime against humanity. […]

Given the expertise of the associations [defending the memory of victims of crimes against humanity] on certain issues and taking into account the growing role that the Telegram application plays in the dissemination of hate speech, I believe it is necessary to allow associations to take legal action for offenses of non-public apology or denial of crimes against humanity, in order to ensure greater effectiveness of the penal response.”

The text, approved by the directly elected National Assembly, has been sent to the indirectly elected Senate for approval. If the Senate approves it without modifications, it will become law; if, however, changes are made to the text, the proposal will be sent back to the National Assembly, going back and forth between the two houses until they reach an agreement. Should they fail to reach an agreement (generally after two votes each), a bicameral conciliation procedure will be put in place whose purpose it will be to produce a text that both houses can agree on, although the last word rests with the National Assembly.[9]

Law professor Simon Husser explains what exactly is meant by “non-public”:[10]

“Indeed, the Court of Cassation [supreme court for civil and criminal cases in France] makes a ternary distinction between confidential, non-public and public comments. The first of these escape the clutches of criminal law. In most cases, the boundaries between these three hypotheses are rather simple to draw. The statement is ‘public’ if it is addressed, via a means of public communication, to a large audience.

The message is ‘non-public’ when it is addressed to a group of people united by close ties, what jurisprudence refers to as a ‘community of interests’. For example: comments addressed to members of a company, an association, a political party, or even messages posted in WhatsApp groups. These are the hypotheses that would become punishable when denialist or apologetic comments are involved. Finally, the statement is ‘confidential’ when the exchange takes place between only two people, between several people held to confidentiality or within a family context.”

He then adds, by way of reassurance:

“Of course, the boundaries are not always easy to draw between these three degrees of communication. However, it is abusive to claim that, on the pretext that there are cases that are difficult to decide, the distinction is ‘Jesuitical’ and that judges can without any difficulty interfere in the private sphere of each person. Indeed, it is important to emphasize the essential: conversations held in a family or purely interpersonal context cannot be punished. Or as the rapporteur of the text [the Assembly member who lodged it, i.e. Mathieu Lefèvre] puts it: ‘Let the racists and haters of all stripes rest assured, they will be able to continue to pour out their hatred during their little private dinners!’”

While family or “purely interpersonal” conversations would therefore continue to be protected, speech in the workplace, an association, a political party or an educational establishment would fall within the purview of the new law. As for group chats on platforms such as Telegram or WhatsApp, the crucial factor would appear to be whether they form a “community of interests”, which case law defines as “a group of people linked by common belonging, shared aspirations and goals”;[11] in one case, a person’s Facebook friends were considered by the Cour de Cassation as forming a “community of interests”.[11]

Endnotes