Freedom of expression gives everyone the right to communicate his or her opinions and ideas. An enhanced protection of this fundamental right is granted to certain persons on account of their role and status in a democratic society. This is the case of politicians and elected representatives who benefit from special rules to protect their political expression.
Democracy and political debate
Freedom of expression is repeatedly considered to be one of the essential foundations of a democratic society and one of the basic conditions for its progress. It affords the public with the means of discovering and forming an opinion of the ideas and attitudes of political leaders.
Indeed, as outlined in the French Constitution, political parties contribute to the expression of the democratic vote, and therefore the law should guarantee the pluralist expression of opinions and the equitable participation of political parties in the democratic life of the State.
Moreover, freedom of political debate is at the very core of the concept of a democratic society, which means that the people who participate in this political debate should be able to express themselves freely.
Protection of political debates
Generally speaking, the European Court of Human Rights grants politicians an enhanced protection of their freedom of expression, whether they are campaigning, elected or even in opposition to the political majority. The aim is not only to protect the politician as such but more specifically to protect the political debate as a whole.
example Is considered a violation of freedom of expression the conviction of an elected municipal officer for having accused the deputy-mayor of being a fraud. The Court held that the elected official was merely using his freedom of political expression and since it was a public debate, he could not be accused of defamation.
However, this freedom of expression is two-sided: if a politician can say more than the average person and if more is tolerated from him, he must also tolerate being criticised. This aspect can go as far as justifying infringements of his private life, provided that these infringements are justified by a debate of general interest, or that they are linked to a political debate.
This enhanced protection means that there is very little room for restrictions on freedom of expression in the field of political debate or matters of general interest.
example France was condemned by the European Court of Human Rights for having sanctioned a candidate in a municipal election to pay a one-euro compensation to the outgoing mayor who was accused of “electoral shenanigans”. The Court considered that this sanction, however minimal it may seem, was likely to have a dissuasive effect on freedom of expression.
Restrictions and sanctions
While politicians benefit from a greater protection of their freedom of expression in the course of their duties, they may also be subject to more serious sanctions if they abuse this freedom.
Indeed, more severe sanctions are applied to persons holding public authority or entrusted with a public service mission when they violate the Law on the Freedom of the Press.
example If such persons are accused of hate speech or discriminatory insults, they are sanctioned by 3 years of imprisonment and a fine of 75 000 euros.
Read more about hate speech and defamation.
Special rules
In France, there are specific rules that protect particularly members of the executive branch and nationally elected representatives (members of the French Parliament and Senate). However, locally elected representatives do not benefit from a special protection and are liable under ordinary law for both their actions and words.