JUSTICE - No. 67

26 No. 67 JUSTICE reedom of expression is guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) in Article 10, paragraph 1. Paragraph 2 provides for the possibility of limiting the exercise of this right, where such “restrictions or penalties prescribed by law (...) constitute measures necessary in a democratic society (...) for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others (...).”According to the European Court of Human Rights (“the Court”), matters which affect the public to such an extent that it can legitimately take an interest in them, or which arouse its attention or give rise to substantial concern, because they relate to the well-being of citizens or the life of the community, are matters of general interest. This is also the case for issues that are likely to be highly controversial, that deal with an important social theme, or that relate to an issue about which the public has an interest in being informed.1 The case of Baldassi and others v. France gave the Court the opportunity to rule on the relationship between freedom of expression as enshrined in the Convention and calls for a boycott.2 An international campaign, “Boycott, Divestment and Sanctions”(“BDS”), was indeed initiated on July 9, 2005 by an appeal from Palestinian non-governmental organizations, one year after the International Court of Justice stated that “The construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.”3 In 2009 and 2010, members of this collective initiative participated in operations in France calling for a boycott of products from Israel. In 2015, the French Court of Cassation upheld the conviction of these participants for incitement to economic discrimination based on their belonging to a particular nation; but in its Baldassi judgment of June 11, 2020, the European Court of Human Rights unanimously held that this conviction constituted a violation of Article 10 of the convention on the freedom of expression. In order not to misunderstand the meaning of this decision, it is worth recalling how the call for a boycott of products from Israel is construed under French law. With this background in mind, the scope of the Baldassi ruling will then be explained, as well as its reception by the French public authorities. The French legal treatment of the call for a boycott of products imported from Israel In France, as stated by the Human Rights Defender (Défenseur des droits),4 the call for a boycott of Israeli products is likely to be qualified as illegal discrimination under two French criminal laws. On the one hand, “hindering the normal exercise of any economic activity” based on actual or supposed membership of a nation is prohibited by Article 225-2, 2 of the French Criminal Code. Through this offense resulting from Law No. 77574 of June 4, 1977, the legislator intended to combat economic boycott practices in international trade as inspired by political reasons. Since the text does not refer to any specific behavior, the offense of hindering the normal exercise of any economic activity must be Call for the Boycott of Israeli Products: Incitement to Economic Discrimination or Freedom of Expression? F Floriane Beauthier deMontalembert 1. Satakunnan Markkinapörssi Oy et Satamedia Oy v. Finland, no. 931/13, ECtHR [GC], § 171, June 27, 2017. 2. Baldassi and others v. France, no. 15271/16, 15280/16, 15282/16, 15286/16, 15724/16, 15842/16 and 16207/16, ECtHR, June 11, 2020. 3. Legal Consequences of aWall in the Occupied Palestinian Territory, I.C.J., Advisory Opinion, Reports 2004, p. 136, § 163, July 9, 2004. 4. Human Rights Defender, deliberation no. 2009-384 of Nov. 30, 2009.

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