[FREEDOM OF ARTISTIC EXPRESSION]

[FREEDOM OF EXPRESSION – DIGNITY – ARTISTIC AND LITERARY PROPERTY]

🚨 The fundamental principle of the dignity of the human person cannot be invoked as an autonomous basis for restricting the author's freedom of expression in the absence of infringement of a competing right.

(Cass., ass. plén., 17 November 2023, no. 21-20.723)

📌At a public art exhibition organised by the Fonds régional d'art contemporain de Lorraine (FRAC), handwritten letters by an artist containing provocative expressions had been exhibited as an artistic and literary work. The aim of these writings was to provoke public reaction to the subject of domestic violence.

‘Children, we're going to make you eat your shit (...)

Children, we're going to smash your skulls in with a hammer (...)’.

The Association générale contre le racisme et pour le respect de l'identité française et chrétienne (General Association against Racism and for the Respect of French and Christian Identity) sued FRAC for damages for harm caused to the collective interests in violation of the dignity of the human person enshrined in article 16 of the French Civil Code.

⚖️ The Constitutional Council has established the absolute constitutional value of the principle of human dignity. (Decision no. 94-343/344 DC, 27 July 1994; Decision no. 2017-632 QPC, 2 June 2017)

Freedom of expression includes freedom to hold opinions and to receive and impart information and ideas (Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms). It includes the freedom of artistic expression, which is a value in itself and protects those who create, perform, disseminate or exhibit a work of art (ECHR, 11 March 2014, no. 47318/07, § 33; ECHR, 3 May 2007, Ulusoy and Others v. Turkey, no. 34797/02, § 42).

However, the exercise of these freedoms is not without limits. It may be subject to ‘certain formalities, conditions, restrictions or penalties provided for by law, which constitute measures necessary (...) for national security, public safety or public order (...) national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of confidential information or for maintaining the authority and impartiality of the judiciary’ (Article 10, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms).

In other words, a fair balance must be struck between several competing rights (such as the right to privacy or the right to a person's image).

In the absence of infringement of a right competing with freedom of expression, the principle of human dignity cannot be established as an autonomous basis for restrictions on freedom of expression (Ass. plén., 25 October 2019, pourvoi n° 17 86.605, published).

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