On June 11, 2020, the European Court of Human Rights (ECtHR) held that France violated Article 10 (freedom of expression) of the European Convention in the Baldassi and Others v. France case (in French) by convicting activists with criminal charges for incitement to economic discrimination, on account of their participation in actions aimed at boycotting products imported from Israel as part of the Boycott, Divestment and Sanctions (BDS) campaign.
Call for boycott and criminal charges
In 2009 and 2010 applicants took part in actions inside a supermarket calling consumers to boycott Israeli products, handing out leaflets, and presenting a petition to be signed inviting the hypermarket to stop selling such products. In the aftermath, the public prosecutor summoned the applicants to appear before the Mulhouse Criminal Court for among others, incitement to discrimination under section 24 (8) of the Law of 29 July 1881 (in French). While the Criminal Court acquitted applicants, Colmar Court of Appeal reversed the judgement, holding applicants guilty of the offence of incitement to discrimination.
By two judgments (in French) of 20 October 2015, the Criminal Division of the Court of Cassation dismissed the appeals filled by the applicants who alleged a violation of Article 7 and 10 of the European Convention on Human Rights (ECHR). The Court found, notably, that the exercise of freedom of expression enshrined in Article 10 ECHR could be subjected to restrictions or sanctions which, as in the present case, were necessary measures in a democratic society for the prevention of disorder and the protection of the rights of others.
It is important to recall, as the ECtHR did, that boycott is legal under international law. As stated by the UN Special Rapporteur on freedom of religion or belief regarding the BDS movement “… international law recognizes boycotts as legitimate forms of political expression and that non-violent expressions of support for boycotts are, as a general matter, legitimate speech that should be protected. However, he also stresses that expression that draws on antisemitic tropes or stereotypes, rejects the right of Israel to exist or advocates discrimination against Jewish individuals because of their religion, should be condemned” (§18).
Necessity in a democratic society
Assessing compliance with Article 10 ECHR, the Court first discussed the specific characteristic of boycott. Call for boycott combines the expression of a protest with incitement to differential treatment that may, under certain circumstances amount to incitement to discrimination. While incitement to discrimination is a form of incitement to intolerance which, together with call to violence and hatred fall outside freedom of expression, incitement to differential treatment does not always amount to incitement to discrimination (§63).
Second, the Court drew distinction between the present case and Willem v. France case (in French) where a mayor was convicted for incitement to discrimination after he decided to ask the municipal catering services to boycott Israeli products.
In that case, the Court found no violation of Article 10 as the mayor had used his mayoral powers regardless of the concomitant duties of neutrality and discretion, and he had made the announcement without a prior debate or vote in the municipal council, such that he could not claim to have encouraged debate on a subject of public interest. On the contrary, in the present case, applicants were ordinary citizens who had no specific duties and responsibilities and whose acts aimed at raising awareness and encouraging debate among consumers (§65-69).
Third, while the Court refused to question the interpretation of French law on which the applicants’ conviction was based, to the effect that by calling for a boycott of products from Israel the applicants had incited people to discriminate against the producers or suppliers of those products on grounds of their origin, the Court nevertheless noted that, as interpreted in the case, French law prohibited any call for a boycott of products on account of their geographical origin whatever the grounds and circumstances of such call (§74-75).
The Court found that French jurisdictions did not assess the prosecuted actions in the light of the specific circumstances and grounds. Hence, French judges failed to demonstrate the necessity of applicants’ conviction in a democratic society to attain the protection of the rights of others in violation of Article 10 ECHR.
Furthermore, due to the high level of protection of the right to freedom of expression, French jurisdictions should have given detailed motivations for their decisions. In fact, the opinions expressed by applicants concerned a topic of public interest (respect of international law and human rights law by the State of Israel), and their actions fell under the scope of political and militant expression (§76-78).
Issued in a context where Israeli authorities want to move forward in the annexation of the West Bank, this ruling is good news for every activist advocating, through BDS campaign, for Israel’s compliance with international law.