A restriction on freedom of expression means that the state somehow interferes with the expression of your ideas. This usually happens when the state prohibits the publication or expression of ideas beforehand (prior restraint) or sanctions the author or publisher after the ideas have already been expressed (post-publication restraint).
Prior restraint
Prior restraint is aimed at preventing an expression before other people have had an opportunity to receive it. Examples of measures of prior restraint are a court’s decision to prohibit the publication of an article or book, or an order from an administrative authority to ban the broadcasting of a show on television or radio. Prior restraints can only be applied in very exceptional cases and they would need to be justified by very weighty reasons, such as the need to prevent incitement to violence against a certain ethnic or religious group, the need to protect the public order or someone’s right to respect for his private life.
example A prior restraint can be imposed by a court’s decision in a special legal procedure called “référé d’heure à heure”. This procedure can be used in case of a very serious and urgent situation, for example to prevent the publication of illegal content.
These measures interfere with the very essence of freedom of expression, that is, the exchange of information and ideas between those who wish to receive them and the recipients’ opportunity to form their opinion about them. That is why the courts must apply very strict standards when they evaluate whether these measures are permissible or not.
French public authorities such as mayors and prefects are allowed to take ‘administrative police measures’ to maintain the public order, either by preventing infringements or putting an end to them. To that end, they can limit the exercise of fundamental rights when there is a risk for the public order (e.g., security, human dignity etc.). These measures must however be necessary, adapted and proportionate to the aim. Also, these measures cannot consist of general and absolute bans unless they are the only way to prevent a disturbance of the public order.
example In France, a stand-up comedian was prevented from doing his show in a city because his show was intentionally antisemite and negationist, which constituted a criminal offence, and it violated human dignity. His complaint to the European Court of Human Rights was declared inadmissible for abuse of his freedom of expression.
Apart from administrative police measures, there are in France very few possible prior restraints. The principle is that communication on paper (books, press etc.) and on internet is free and does not need to be authorised beforehand. The only media that can be subject to prior- authorisations are television, radio, and cinema.
example According to French law, films need an authorisation from the Minister in charge of culture to be broadcasted on cinema. This authorisation can be refused or subject to conditions on grounds of child and youth protection or respect for human dignity.
Post-publication restraint
Post-publication restraints are aimed at sanctioning the author, commentator or publisher after the expression has been made public. This usually happens when the court or other public authorities have found them to be unlawful. Most often post-publication restrictions take the form of civil sanctions.
example If someone’s reputation has been damaged by false information, the accused may be ordered to pay compensation, retract the false information and/or to apologize to the other person.
In rare cases there may also be criminal and disciplinary sanctions. Criminal sanctions are the strictest type of punishment and they must, therefore, be applied for only very good reasons. For example, to prevent incitement to violence, physical threats or incitement to hatred. These sanctions must always be proportional to the legitimate aim they pursue.
example If a hospital employee reveals the medical condition of a famous person he/she may be punished with a disciplinary sanction. However, a criminal charge resulting in a prison sentence will probably not be proportional in that situation.