Anonymous web users had posted tweets against the Jewish community. In addition, they created #hashtags to improve the visibility of the posts. Under French law, such conduct may fall within the scope of criminal offenses. French associations fighting against anti-Semitism and racism decided to prosecute the authors of these messages. To achieve this, the plaintiffs had to pierce the veil of anonymity.
French law contains numerous provisions relating to personal data and recognizes the right to anonymity. However, freedom of expression is not absolute and no one can hide behind a mask to abuse it. Therefore, we cannot ignore the provisions of the Decree No. 2011-219 of 25 February 2011, which was adopted precisely to clarify the conditions of storage and communication of data for the purpose of identifying a person who contributed to an online content. However, the scope of these provisions is limited to the French territory. Indeed, article 4 of this decree calls to consider the law n° 78-17 of 6 January 1978 on Information Technology, Data Files and Civil Liberties. This act applies to the processing of personal data “only if: 1° the data controller is established on French territory. The data controller who carries out his activity on French territory within an establishment, whatever its legal form, is considered established on French territory; 2° the data controller, although not established on French territory or in any other Member State of the European Union, uses means of processing located on French territory, with the exception of processing used only for the purposes of transit through this territory or that of any other member State of the European Union” (article 5-I).
Now the question becomes, whether the mere presence of a Twitter office in Paris is enough to make these provisions applicable to the present case. For the court, the answer is no. In any case, judges believed that the plaintiffs had not demonstrated that “Twitter Inc. was established in France or use[d], for the storage of data, Twitter France physical or human means, or any other entity located on French territory, otherwise than for transit”. Therefore, Twitter could not be forced to disclose the identifiers of the authors of the posts in question on the basis of Decree No. 2011-219 of 25 February 2011.
The plaintiffs have obtained better results on the basis of Article 145 of the French Code of Civil Procedure. This article provides that “[i]f there is a legitimate reason to preserve or to establish, before any legal process, the evidence of the facts upon which the resolution of the dispute depends, legally permissible preparatory inquiries may be ordered at the request of any interested party, by way of a petition or by way of a summary procedure”. In the application of this provision, the President of the Paris Court of First Instance (le president du Tribunal de Grande instance de Paris) has taken into consideration the following facts:
i) Twitter rules state that “[i]nternational users agree to comply with all local laws regarding online conduct and acceptable content”;
ii) users whose identification is sought are amenable to the French criminal law in accordance with Article 113-2 of the Criminal Code, which provides that “French Criminal law is applicable to all offences committed within the territory of the French Republic. An offence is deemed to have been committed within the territory of the French Republic where one of its constituent elements was committed within that territory”;
iii) Twitter acknowledged that it held the related data under Californian law.
Accordingly, the court ordered Twitter to disclose data in its possession likely to enable the identification of anyone who has contributed to the creation of “manifestly unlawful tweets”.
This decision may have a significant impact on judicial practice. The French judge points out that French law has effective mechanisms to identify persons who engage in unlawful online behaviors under the guise of anonymity.
Finally, it should be added that the solution adopted by the court goes beyond the scope of racial offenses. Indeed, it can also be used in many circumstances, such as defamation, invasion of privacy or infringement.
Emmanuel Gillet, Ph.D. in Law
To read the judgement (in French) : Tribunal de Grande Instance de Paris, Ordonnance de référé, 24 Janvier 2013 (Legalis).