On 20 May 2021, the French Constitutional Council rejected several provisions of the French government's controversial security bill, originally adopted by the French Parliament, highlighting lack of clarity in the provisions and potential for violation of civil liberties. Since its introduction in October 2020, the bill has raised major concerns from human rights NGOs, civil society organisations, and journalists. It indeed opened avenues for the expansion of private security, the use of drones, and pedestrian cameras using facial recognition.

CONTROVERSIES OVER THE BILL: SECURITY OVER HUMAN RIGHTS

ARTICLE 24 AND THE “PROVOCATION TO IDENTIFICATION”

Since the tabling of the proposal before the Parliament on October 20 last year, the global security bill had raised major criticisms from civil society and international human rights organisations. Among other measures, the law would expand the powers of municipal agents, strengthen police ability to use drones to monitor individuals in public spaces, and restrict people’s ability to film police action. Following its first adoption by the French National Assembly in November 2020, UN experts had already expressed their concerns over the bill’s potential incompatibility with international human rights law, stating that the French government needed to “go further and rethink the purpose of the bill as a whole”.

As a response to the concerns over the bill’s implications for civil liberties and human rights, the Senate had expressed its commitment to amend the law and rewrite the controversial article 24. In its most recent version, article 24 criminalises the dissemination of images of national police officers or gendarmes with the “obvious aim of damaging their physical or psychological integrity”. Originally, this article was integrated into the 1881 Freedom of the Press Law. [in French] Strong opposition emerged among attorneys, human rights NGOs, and journalist unions demanding the further modification of the article, considering its potential impingement on freedom of the press and information.

Instead of amending the 1881 Law, Senate deputies created a new infringement in the Criminal Code, called the “provocation to identification”. [in French] This independent criminal offence would then not directly restrict freedom of press—at least in theory. In reality, such a legal development was only symbolic as journalists could still be prosecuted and sentenced for publishing videos under article 24. As previously explained by Nathalie Tehio, criminal lawyer and member of the Human Rights League, restrictions on people’s right to document police action have already been deeply entrenched in daily police practice—despite being illegal at the time.

While providing legal grounds for the restriction of individuals’ abilities to film police abuse, the final version of article 24 served the bill’s original purpose—that is, protecting the police. Meanwhile, after six months of parliamentary debate, the French government had not managed to demonstrate the necessity and proportionality of such measures—two criteria continuously emphasised by the European Commission. [in French]

ARTICLE 22 AND THE USE OF DRONES: UNCLEAR LIMITS FOR THE EXPANSION OF SURVEILLANCE

 Under article 22, the final version of the bill aimed to establish a legal framework for the use of drones. This was a first in the French Constitution, as the use of drones had never been legally regulated before. In May 2020, head of Paris Police Prefecture Didier Lallement’s use of drones for surveillance purposes had been ruled illegal by the French Council of State. However, at the end of October 2020, associations for the defence of civil liberties revealed that the national police and the gendarmerie had systematically used drones to monitor demonstrations. [in French] The independent news outlet Mediapart had also documented such use. [in French] Seeing the Paris Police Prefecture’s continuing unlawful measures, the Council of State issued a second prescription once again in December 2020. However, this ruling was mostly due to the absence of any existing legal framework and regulations.

 Under the final draft bill voted on by the French Parliament [in French], drones could be used for a broad range of purposes, such as “the security of individuals in public spaces when there is a risk of disturbance of public order, the prevention of terrorist attacks, assistance to people and fire-fighting” as well as “the protection of public facilities, the regulation of transport stream, the prevention of illegal border crossings, and the anticipation of natural or technological risks”. Seeing the broad and rather vague list of justifications, several institutions highlighted the bill’s lack of proportionality and necessity.

During a public hearing on 3 February 2021, the National Commission for Data Protection and Liberties (CNIL) stressed the need to narrow down and better define the list of offences that could justify the use of drones. While the CNIL welcomed that, unlike before, regulations over such surveillance methods were being discussed, the institution still highlighted the incompleteness of the proposed legal framework. [in French] According to CNIL President Marie-Laure Denis, the diversity and unequal importance of the reasons given for the use of drones echoed the global emergence of “societies of surveillance”.

 In light of these criticisms, the Senate Commission of Law managed to add several measures to prevent the misuse of these technologies. These include the obligation to request approval from the departmental authority or the public prosecutor before any use of drones. [in French] However, according to journalists and human rights NGOs, the bill remained incomplete and did not provide strict-enough guidelines. As stated by Amnesty International [in French]: “While senators have introduced some improvements as compared to the text previously voted on by the National Assembly such as the ban of facial recognition for drones, the law proposal largely extends surveillance.” After several modifications aimed at protecting civil liberties, the Senate adopted the bill on 18 March 2021, including article 22.

Overall, the final global security bill aims to allow practices that were already carried out illegally—or, rather, outside of any legal framework. This was done in ways that could justify police abuse of technology at the expense of the right to privacy and civil liberties. On 29 March 2021, the Joint Committee, or Commission mixte paritaire, drafted a final proposal to combine and unify the National Assembly’s and the Senate’s two different versions. [in French] On 7 April and 15 April respectively, the National Assembly and the Senate approved the final proposal in the same terms [in French], including article 24 and article 22. This came as no surprise considering the Senate conservatives hold the upper hand, and Emmanuel Macron’s party—the originators of the bill—represent the majority in the National Assembly. 

SECURITY BILL RULED UNCONSTITUTIONAL.  

After the French Parliament—composed of the National Assembly and the Senate together—adopted the final version of the bill, one last procedure remained before the proposal could officially be signed into French law. On April 20 and 21, Prime Minister Jean Castex and more than 60 senators called for an examination by the French Constitutional Council. [in French] As established by the Fifth Republic, the Constitutional Council is the highest constitutional authority in France. Its main purpose is to examine whether law proposals are legal within the constitution between their final approval by the Parliament and their enactment by the president.

While defending the “excellent” character of the law proposal [in French], Castex affirmed his view that “there is no doubt…about [the government’s] firm intention to ensure the protection of our security forces while fully respecting democratic freedoms and the rule of law,” adding that the aim of article 24 “was not to prevent anyone from broadcasting images that shed light on a fact or event of public nature”.

Contrary to Castex’s expectations, the French Constitutional Council eventually rejected major provisions of the bill. This included the controversial article 23 (which now refers to article 52) as well as provisions regarding the use of drones and pedestrian cameras. According to the institution, these measures could disproportionately impact civil liberties and the right to privacy. The institution also highlighted the vagueness of article 23 regarding the “provocation to identification,” which was loosely defined. 

Following the Council’s decision, Minister of Interior Gerald Darmanin said he would make new proposals to the prime minister to improve the bill. Meanwhile, the National Union of Journalists [in French] hailed “a victory for the defenders of freedoms, for journalists, and for anyone who can therefore continue to film without concern”. Likewise, President of Amnesty International France Cécile Coudriou welcomed the Council’s decision, highlighting its contribution to the protection of human rights in France. [in French]

Lastly, although human rights defenders and organisations celebrated the overturn of several provisions of the bill, concerns over the French government’s increasing impingement on human rights remain. This does not only concern France’s global security bill, but also the government’s law proposal on separatism, which presents severe implications for freedom of religion, freedom of association, freedom of speech, and freedom of education. [in French] With regards to the bill on global security, it remains to be seen whether the government’s new propositions will ensure the protection of human rights and civil liberties.

Valentine holds a Bachelor’s degree in International Relations from Amsterdam University College and wrote her dissertation on the French government’s securitisation of Islam through counterterrorism and secularism. She is currently pursuing her Masters in Middle Eastern Politics at SOAS University of London. Her fields of interests include state violence and terrorism, human rights, and intersectional feminism.

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